JUDGMENT 1. - The learned Addl. Sessions judge, Raisingnagar by his judgment dated 17.8.1994 has convicted the accused-appellants under sections 302, 302/149, 307/149, 336/149, 148 IPC and Section 27 of the Arms Act and passed the following sentences:- Harbhajan Singh u/s. 302 IPC Life imprisonment and a fine of R. 100/- and in default of payment to further R.I. of one month u/s. 307/149 IPC 10 years.R.I. and to pay a fine of Rs. 50/ and in default of payment to further 15 days R.I. u/s. 148 IPC 1 year R.I. u/s. 27 Arms Act 1 year R.I. u/s. 336/149 IPC 3 months R.I. Kulvinder Singh Malkiat Singh @ Mitta u/s. 302/149 IPC Life imprisonment & a fine of Rs. 100/ and in default of payment to further one month R.I. Mahendra Singh u/s. 307/149 IPC 10 years R.I. and a fine of Rs. 50/- and in default to further 15 days R.I. u/s. 336/149 IPC 3 months R.I. u/s. 148 IPC 1 year RI. u/s. 27 Arms Act 1 year R.I. All the sentences were ordered to run concurrently. 2. The prosecution case, as unfolded during trial may be stated as follows. On 18.11.1992, at 6.00 a.m. Mahendra Singh (PW 4), Kashmir Singh (PW 5), Gurubachan Singh (PW 7), Achhar Singh and Deedar Singh (PW 6) were sitting in the house of Shri Mahendra Singh. Accused Harbhajan Singh, Niranjan Singh and Harjinder Singh came on a tractor. After stopping the tractor they abused Mahendra Singh and other persons above named. They also fired a gun in the air in order to terrorise them. Thereafter they left with a threat that they were returning after bringing some more persons in order to take revenge. There was a dispute between the above two groups in respect of some way of the agricultural land. It is alleged that at 8.00 a.m. Harbhajan Singh, Mahendra Singh, Niranjan Singh, Pyara Singh, Malkiyat Singh, Nishan Singh, Kulwant Singh and some other persons came from the side of bus stand of 49 G.B. Most of them were armed with guns and rifles and they were firing in the air. Balveer Singh wanted to go to his house and when he was going so Harbhajan Singh fired at him with his gun which hit Balveer Singh on his head. He died instantaneously. Balveer Singh wanted to go to his house and when he was going so Harbhajan Singh fired at him with his gun which hit Balveer Singh on his head. He died instantaneously. Similarly, Gurubachan Singh was also trying to run towards his house but Niranjan Singh fired a gun fire at him which hit on his mouth. He was seriously injured and took shelter behind the chhapra of the house of Mahendra Singh in which Topanram was also living in one portion. Thereafter the accused left the place of occurrence. This violence continued for about 5 to 7 minutes. After the departure of the accused, Mahendra Singh boarded a bus and reached Police Station, Ramsinghpur on the same day at 8.40 a.m. and lodged the FIR Ex. P/17. On receipt of the report, the police registered a case u /ss. 302, 147, 148, & 452 IPC and started investigation. Mangu Khan informed about this incident to Circle Officer, Anupgarh by wireless and the Circle Officer entrusted the investigation to Mangu Singh (PW 11). He reached the place of occurrence: He prepared the inquest report Ex. P/22 in presence of Punches. Certain photographs were also taken of the site. The Investigating Officer also got the autopsy on the body of Balveer Singh done by Dr. K.L. Ma danpotra. According to the post-mortem reports Ex. P/1, Balveer Singh was found to have sustained a penetrating lacerated wound 2 cm. x 2 cm. triangular in shape over forehead at left eye brow. Margins of the wound were inverted. There was no burning, blackening or tattoing on surrounding skin but colour of abraison was present at margin of wound and looked like black coloured margins of wound of entry. The direction of the injury was oblique and backward from left to right. There were fractures of frontal bone, occipital bone, temporal bone, parietal boneand nasal bone. The brain matter was also coming out. Pieces of brain matter and bones were found present near the exit wound. Balveer Singh died on account of the above gunshot injury. 3. Gurubachan Singh was also medically examined by Dr. Ratanlal Agarwal (PW 9) on 18.11.1992. He found the following injuries on his person:- 1. Lacerated wound of entry 2.5 cm x 2.5 cm. piercing the mouth near the angle of left side of mouth just above the left lip going deep. 3. Gurubachan Singh was also medically examined by Dr. Ratanlal Agarwal (PW 9) on 18.11.1992. He found the following injuries on his person:- 1. Lacerated wound of entry 2.5 cm x 2.5 cm. piercing the mouth near the angle of left side of mouth just above the left lip going deep. The left gum and teeth of left upper gum from canine to second molar were removed. There was bleeding from the above wound. There was also a laceration of the tongue on left side going deep. 2. Incised wound 1.5 cm. x 0.5 cm x 1/4cm. on left face just above injury No. 1. 4. Gurucha ran Singh also complained of pain in the right side of neck in the middle but there was no visible external injury. The injury report is Ex. P/23. 5. Mangu Singh also prepared site plan Ex. P/19 and the site memo Ex. D/5. He found two empty cartridges in the field of Gurmeet Singh of 315-bore gun vide seizure memo Ex. P/31, three empty cartridges of 12-bore gun from the field of Deedar Singh, vide seizure memo Ex. P/39, two empty cartridges of 315-bore gun from the field of Deedar Singh vide seizure memo Ex. P/33 and 12 pellets from the northern kachha wall of Topanram vide seizure memo Ex. P/34. He also found 23 pellets apparently fired from 12-bore gun near the wall of the school shown in Ex. P/19 at place 'H'. Mangu Singh also recorded the statements of material witnesses. Bhagwanaram (PW 12) then took up the investigation by the order of the S.P. on 26.11.1992. The accused were arrested. In pursuance of the information furnished by Harjinder Singh and Rajveer Singh under section 27 of the Evidence Act: barrel of 12-bore gun and a 12-bore gun belonging to Ram Singh were recovered. After collecting the above incriminating evidence against the accused, the police filed a charge-sheet against 16 persons. The learned Magistrate committed the case to the Court of the learned Addl. Sessions Judge, Raisingnagar. The other accused were acquitted by the learned Addl. Sessions Judge. 6. The learned Addl. Sessions Judge, after appreciation of the prosecution evidence, came to the conclusion that the prosecution was successful in proving the above offences against the accused-appellants. The learned Magistrate committed the case to the Court of the learned Addl. Sessions Judge, Raisingnagar. The other accused were acquitted by the learned Addl. Sessions Judge. 6. The learned Addl. Sessions Judge, after appreciation of the prosecution evidence, came to the conclusion that the prosecution was successful in proving the above offences against the accused-appellants. He believed the prosecution version that the actual violence was preceded by a warning given by Harbhajan Singh and Niranjan Singh who came to Mahendra Singh and his companions at 6.00 a.m. They gave a threat to Mahendra Singh and his associates that they were coming again with some more persons and force. According to the learned Sessions Judge, the accused-appellants along with other persons came in a tractor and jeep and surrounded the house of Mahendra Singh and started firing indiscriminately. When Balveer Singh was attempting to proceed to his house he was made the easy target. Mahendra Singh, accused-appellant, exhorted Harbhajan Singh to shoot Balveer Singh. Accordingly, Harbhajan Singh fired from his 315-bore gun and the bullet hit Balveer Singh on the head. He, on account of the fatal injury caused by above bullet, fell down and died instantaneously. Similarly, when Gurubachan Singh and Achhar Singh were proceeding towards their field, Harbhajan Singh fired his gun and the bullet hit him on the left jaw. He was seriously injured and managed to save himself by taking shelter in the chhapra of Mahendra Singh's house. He thus believed the testimony of material witnesses, viz., Mahendra Singh (PW 4), Kashmir Singh (PW 5), Deedar Singh (PW 6), Gurdeep Singh (PW 8) and Gurubachan Singh (PW 7). He, therefore, convicted and sentenced the accused as aforesaid. 7. We have heard learned counsel for the appellants Shri M.L. Garg and learned P.P. Shri V.R. Mehta. 8. Shri Garg referred the statements of the prosecution witness and submitted that from the statements of these witnesses it is clear that the prosecution has miserably failed to prove who caused the injuries to Balveer Singh and Gurubachan Singh. The prosecution has totally failed to point out the exact location of the incident. According to the prosecution Balveer Singh was proceeding towards his house and he was hit by Harbhajan Singh at the instance of accused Mahendra Singh. The prosecution has totally failed to point out the exact location of the incident. According to the prosecution Balveer Singh was proceeding towards his house and he was hit by Harbhajan Singh at the instance of accused Mahendra Singh. He has tried to show that the prosecution story is impossible and the witnesses who claimed to have witnessed this incident were not in a position to do so. Shri Garg has referred in particular the statements of Mangu Singh (PW 11) and Bhagwanram (PW 12) to show that after the threat given by accused Harbhajan Singh and Niranjan Singh, the complainant party consisting of Mahendra Singh, Kashmir Singh, Gurubachan Singh, Achhar Singh and Deedar Singh prepared themselves for the ensuing combat and prepared a morcha by breaking the eastern wall of the chhapra 'G' as shown in Ex. P/19. The complainant party was armed with fire arms and they also indulged in gun fire and there is a possibility that Balveer Singh was hit by the bullet fired by one of the persons of the complainant party who were sitting at place 'G'. Balveer Singh was found lying at place 'A' as shown in Ex. P/19. Place 'A' is just in-front-of place 'G' and any person firing gun could hit Balveer Singh at place 'A'. He also wondered how Gurubachan Singh could be hit on the left side of his face when he was proceeding towards the west. According to the prosecution the accused were either standing on the eastern side or the northern side of the house of Mahendra Singh. When Gurubachan Singh was proceeding towards the west, it was not possible that any of the accused persons could hit him in the above manner. In fact, there is a conflicting evidence as to where Gurubachan Singh was at the time when he was hit by the bullet. Shri Garg has also pointed out several contradictions in the statement of material witnesses. In fact, witnesses have made substantial improvements over the statements they gave under section 161 Cr.P.C. in order rope in as many as possible. 9. Learned P.P. has fully supported the judgment of the learned Addl. Distt. Judge and stated that from the statement of the above witnesses, it has been satisfactorily proved who hit Balveer Singh and who injured Gurubachan Singh. 9. Learned P.P. has fully supported the judgment of the learned Addl. Distt. Judge and stated that from the statement of the above witnesses, it has been satisfactorily proved who hit Balveer Singh and who injured Gurubachan Singh. He submitted that it is an admitted fact that there was an enmity between two groups over the right of way. The accused made a concerted attack on the complainant party and this was preceded by a clear warning given by Harbhajan Singh and Niranjan Singh at 6.00 a.m. 10. We have considered the rival contentions made at Bar and perused the evidence produced by the prosecution carefully. 11. Before we proceed to examine the contentions raised by the learned counsel for the accused-appellants, we may state that it has not been disputed before us that Balveer Singh died on account of head injuries caused by a bullet. His death was, therefore, homicidal in nature. Similarly, Gurubachan Singh (PW 7) was also hit by a bullet on his mouth and he sustained injury No. 1 as described in Ex. P/23. It may also be stated that prosecution has not been able to prove how Gurubachan Singh sustained injury No. 2 incised wound on the left face just above injury No. 1. The Medical Officer Dr. Ratanlal Agarwal categorically stated that the above injury was not the result of injury No. 1. In other words, injury No. 2 was inflicted independently. As we will notice hereinafter, the prosecution has totally failed to prove who caused this injury to Gurubachan Singh. 12. The second fact worth-mention is that admittedly there was an enmity between the parties with regard to the right of way. According to Mahendra Singh (PW 4), the way was sanctioned by the Revenue Authorities some 7 or 8 years ago. He further stated that litigation regarding the above way is still pending. 13. The last fact which we would like to mention and which has got a material bearing on the appreciation of evidence is that when Mangu Singh (PW 11) inspected the site and prepared the site plan Ex. P/19 and site memo Ex. D/5, he found fresh marks of breaking of the eastern wall of the house of Topanram which abuts on the main road which goes from north to south. Shri Mangu Singh has indicated the same by letter 'F' in Ex. P/19. P/19 and site memo Ex. D/5, he found fresh marks of breaking of the eastern wall of the house of Topanram which abuts on the main road which goes from north to south. Shri Mangu Singh has indicated the same by letter 'F' in Ex. P/19. It was further stated in Ex. D/5 that there were recent signs of breaking the wall. The kachhi bricks were lying there. He also found two wads. The distance between 'F' and 'A' where the dead body of Balveer Singh was lying was only 40 ft. Mangu Singh (PW 11) further stated that he found blood stains in chhapra 'G' as shown in Ex. P/19. He also stated that from I he above there was a clear evidence that the complainant party also prepared a morcha (entrenchment). It is the prosecution case that before the actual occurrence took place, accused Harbhajan Singh and Niranjan Singh reached near the house of Mahendra Singh at 6.00 a.m. and threatened the latter that they were coming with reinforcement. The second occurrence took place at 8.00 a.m. when all the accused persons along with 10-15 other persons armed with fire arms reached near the house of Mahendra Singh. From the prosecution evidence it has been proved that despite the threat given by Harbhajan Singh and Niranjan Singh, Mahendra Singh and party did not lodge any report at the Police Station. If Mahendra Singh wanted to lodge a report at the Police Station he could have done the same within half an hour. However, it was not done. Mahendra Singh, Kashmir Singh, Gurubachan Singh, Achhar Singh and Deedar Singh did not leave the place in order to ward off the impending attack at the hands of the accused persons. From the above, learned counsel for the accused-appellants wants to conclude that Mahendra Singh and his associates were not terrorised and appeared to have prepared to face the assault to be launched by the accused. It was in that context that the accused prepared a mocha at place 'F' by dismantling the eastern wall. The above wall abuts on the main road which goes from north to south. The accused party was expected to come from that side. It was in that context that the accused prepared a mocha at place 'F' by dismantling the eastern wall. The above wall abuts on the main road which goes from north to south. The accused party was expected to come from that side. We find force in the contention of the learned counsel for the appellants because it is supported by the statement of Mangu Singh (PW 11) who got definite evidence of the same when he inspected the site and prepared the site plan Ex. P/19. He also described the above marks in Ex. D/5 when he inspected the site. Blood stains were also found there. 14. Now, we may deal with the statement of the material eye-witnesses. Mahendra Singh (PW 4) has stated that on 18.11.1992 at 6.00 a.m. he was in his house. His son Kashmir Singh, Gurubachan Singh, Achhar Singh and Deedar Singh were also with him. Harbhajan Singh and his son Harjinder Singh and Niranjan Singh came on a tractor on the road in-front-of his house. They abused him and one gun was also fired in the air. They threatened him by saying Harbhajan Singh, Niranjan Singh and Harjinder Singh then left the place by saying that they were returning shortly after taking more persons with them. At 8.00 a.m. Harbhajan Singh, Mahendra Singh, Niranjan Singh, Nishan Singh, Kulvinder Singh, Malkiat Singh 0 Mitta and Pyara Singh came in a jeep and a tractor armed with guns. They stopped the jeep at a distance 2 big has from his house. Harbhajan Singh and Mahendra Singh proceeded towards north of his house and the remaining five accused took position towards east of his house. They started firing. Mahendra Singh, Gurdeep Singh, Balveer Singh, Achhar Singh, Gurdeep Singh, Kashmir Singh also came out along with Mahendra Singh. Niranjan Singh fired his gun and the bullet hit the left jaw of Gurubachan Singh. Thereafter Mahendra Singh exhorted Harbhajan Singh to shoot Balveer Singh who was running. Harbhajan Singh fired the gun and the bullet hit the head of Balveer Singh. Balveer Singh fell down. After that he and other persons again came into the house. The accused chased them up to their house then left. The whole incident lasted 5 to 7 minutes. While going Pyara Singh hit Balveer Singh by the butt. Thereafter Mahendra Singh reached the Police Station and lodged the FIR Ex. P/17. Balveer Singh fell down. After that he and other persons again came into the house. The accused chased them up to their house then left. The whole incident lasted 5 to 7 minutes. While going Pyara Singh hit Balveer Singh by the butt. Thereafter Mahendra Singh reached the Police Station and lodged the FIR Ex. P/17. The police came to the site and prepared site plan Ex. P/19. In cross-examination there are several omissions and contradictions in the statement of this witness which we will refer at a later stage. 15. Kashmir Singh (PW 5) has stated that at 6.00 a.m. Niranjan Singh and Harbhajan Singh came on a tractor towards their house. Rajan Singh was driving the tractor. He, his father Mahendra Singh, Achhar Singh and Gurubachan Singh were in their house. The accused threatened and then left. At about 8.00 a.m. all the accused came in a jeep and a tractor. All the accused were armed with rifles. When Harbhajan Singh fired from his gun from a distance of 2 kilas, he, his father and other persons came out of the house. According to him Harbhajan Singh and Mahendra Singh proceeded towards the west and the other persons towards the east. When Gurubachan Singh and Achhar Singh were proceeding towards their field Niranjan Singh fired his gun on Gurubachan Singh and the bullet hit the latter on his jaw. Balveer Singh, in order to save his life, began to run towards his house. He was hit by the bullet fired by Harbhajan Singh at the instance of Mahendra Singh. The bullet entered into his head and he died instantaneously. In cross-examination he stated that Gurubachan Singh was fired at from a distance of about 30 to 40 ft. and the assailant who fired a gun at Balveer Singh was standing at a distance of one bigha. It was suggested in cross-examination that he and his associates blocked the main road which lies at the east of their house and when the accused came, they started firing and that Balveer Singh and Gurubachan Singh were hit by their bullets. 16. Deedar Singh has also stated about the first incident that occurred at 6.00 a.m. He has stated that Harbhajan Singh, Rajan Singh and Niranjan Singh abused Mahendra Singh (PW 4) in-front-of his house and then they left. There was a dispute of the way. 16. Deedar Singh has also stated about the first incident that occurred at 6.00 a.m. He has stated that Harbhajan Singh, Rajan Singh and Niranjan Singh abused Mahendra Singh (PW 4) in-front-of his house and then they left. There was a dispute of the way. At 8.00 a.m. these 7 accused came. He came out to ask the accused to go. At the same time Achhar Singh and Gurubachan were proceeding towards their field. Niranjan Singh fired his gun from a distance of 30 ft. and the bullet/pellet hit Gurubachan Singh on his left jaw. When his son Balveer Singh was coming to his house, Harbhajan Singh fired his rifle and the bullet hit on his head, as a result of which he fell and died instantaneously. In cross-examination he has stated that when he and his son were running towards their house, Balveer Singh was hit while running. 17. Gurubachan Singh (PW 7) has given a similar statement. He has stated that at 8.00 a.m. he and his father Achhar Singh were proceeding towards their field. At that time the accused came in a jeep and a tractor armed with guns. Five accused persons took position in the western side and two on the eastern side. When he was proceeding from the school to the road, Niranjan Singh fired the gun and the bullet hit his left jaw. He took shelter in the courtyard of Mahendra Singh. He has also stated that Balveer Singh was hit while he was going to his house by Harbhajan Singh. 18. Gurdeep Singh (PW 8) has stated that at 8.00 a.m. the accused came in a jeep and a tractor and started firing. Harbhajan Singh and Mahendra Singh took position on the western side of the house of Mahendra Singh and the other remaining five accused took position on the eastern side. He was standing behind the pillar of the school building. He does not remember who hit Gurubachan Singh. In his police statement Ex. D/9 he did not state who fired at Balveer Singh. 19. We may also refer to the statement of Dr. Ratanlal Agarwal (PW 9). We have already stated the injuries which he found on the person of Gurubachan Singh. He does not remember who hit Gurubachan Singh. In his police statement Ex. D/9 he did not state who fired at Balveer Singh. 19. We may also refer to the statement of Dr. Ratanlal Agarwal (PW 9). We have already stated the injuries which he found on the person of Gurubachan Singh. In cross-examination he has stated whoever hit or fired at Gurubachan Singh must be standing towards his left because the wound caused by the bullet was on the left jaw region. If the 12-bore gun was used the fire ought not to have been aimed at from a distance not more than 10 or 12 feet. 20. Mangu Singh (PW 11) has stated that he prepared memos Ex. P/19 and Ex. D/5 after inspection of the site. He recovered the empty cartridges as stated above. The important facts stated by him may be noticed. He has stated that from his investigation it could not be ascertained who hit Balveer Singh and whether a rifle or a gun was used. He found definite marks of a morcha prepared by the complainant party by pulling down the eastern wall of chhapra of Topanram as shown in Ex. P/19 by letter 'G'. He also found blood stains inside the above chhapra. He mentioned this in the inspection memo Ex. D/5. He could not come to any conclusion as to who caused injury No. 2 to Gurubachan Singh. Bhagwanaram (PW 12) has stated that from his investigation no evidence was found against Nishan Singh, Pyara Singh and Niranjan Singh. On the contrary, these three persons were coperating with the investigation. There was personal rivalry between Mahendra Singh and Niranjan Singh because both these persons fought the election of Sarpanch against each other. 21. From the above evidence we have to first ascertain whether these witnesses were in a position to witness the actual occurrence namely the assault of Balveer Singh and Gurubachan Singh. Mahendra Singh (PW 4), Kashmir Singh (PW5), Deedar Singh (PW 6), Gurubachan Singh (PW 7) and Gurdeep Singh (PW 8) have all stated that first two accused persons, namely, Harbhajan Singh and Niranjan Singh came and they left after threatening Mahendra Singh and others that they were coming after taking more persons with them. In other words, Harbhajan Singh and Niranjan Singh made it clear to Mahendra Singh and his companions that they were returning shortly after taking reinforcement. In other words, Harbhajan Singh and Niranjan Singh made it clear to Mahendra Singh and his companions that they were returning shortly after taking reinforcement. In normal course, Mahendra Singh ought to have reported the matter to the Police Station and it would not have taken more than half an hour. He however did not do so. When the accused came at 8.00 a.m. these persons were found in the house of Mahendra Singh. It is really surprising that why these persons assembled and waited for the arrival of the accused inspite of the threats given by latter. It, therefore, clearly emerges that they were not in a mood to report the matter to the police but to settle the score themselves. This is corroborated by the statement of Mangu Singh (PW 11) who found definite and positive marks of a morcha constructed by the complainant by partially demolishing the eastern wall of the house of Mahendra Singh which abuts on the main road. Mangu Singh found blood stains in the chhapra. We, therefore, find force in the contention of the learned counsel for the accused-appellants that there was a free fight between the two groups. The accused fired so also the complainant party. 22. Now, the important question that arises for determination is whether these five witnesses were in a position to see how Balveer Singh and Gurubachan Singh were hit and who were the assailants. It is in their statements that the accused person fired from a distance of about 2 kilas. Why the accused kept that distance ? The only reason is that they dared not to proceed further because Mahendra Singh,and his associates were also firing at them from the chhapra of Topanram's house. If Mahendra Singh and his associates could have been unarmed, nothing could have prevented the accused from coming to the house of Mahendra Singh directly and making them easy targets. Mahendra Singh has stated that when the accused started firing he came out of the house. This statement does not inspire confidence because nobody would dare come out of the house when there was firing from both the sides. These witnesses have given statement as if they witnessed everything vividly. Mahendra Singh even stated that accused Mahendra Singh exhorted Harbhajan Singh to hit Balveer Singh who was running. But in FIR Ex. P/17 he has not stated this important fact. These witnesses have given statement as if they witnessed everything vividly. Mahendra Singh even stated that accused Mahendra Singh exhorted Harbhajan Singh to hit Balveer Singh who was running. But in FIR Ex. P/17 he has not stated this important fact. He even did not state that after reaching the place of occurrence the accused divided themselves into two groups. Two accused proceeded towards the north and the remaining towards the east. He has not even stated that the accused encircled his house in Ex. P/17. In Ex. P/17 police statements Ex. D/1, Ex. D/2, Ex. D/3 and Ex. D/4 he has not stated that Achhar Singh was also going with Gurubachan Singh. Kashmir Singh (PW 5) has named seven accused persons but in Ex. D/6 he also stated that 10 or 15 more persons were with the accused. In Ex. D/6 he has not stated that half of the accused took position on the left side of the house of Topanram and the remaining of the right side. In Ex. D/6 he has also not stated that Gurubachan Singh and Achhar Singh were proceeding towards their field: There is also material contradiction regarding Gurubachan Singh. In his police statement Ex. D/6 he has stated that Gurubachan Singh was standing in the gall in-front-of the house of Mahendra Singh and Niranjan Singh fired the gun at him and that Gurubachan Singh fell near the wall of Topanram's house. He has stated that Gurubachan Singh was hit from a distance of 30 to 40 ft. Deedar Singh (PW 6) in his police statement Ex. D/7 has stated that Harbhajan Singh fired the gun from a distance of about 2.50 ft. And at that very time as soon as Gurubachan Singh began to enter the house of Topanram, Niranjan Singh fired his gun while standing in the field of Mahendra Singh from a distance of 120 ft. Gurubachan Singh (PW 7) in his statement has not stated that the accused divided themselves into two groups and took position on two different sides. He has categorically stated that when the bullet hit him he was inside the house of Topanram and not in the gali. But in police statement Ex. /D8 he has stated that he was standing in the courtyard of Topanram when he was hit by the bullet. Gurdeep Singh (PW 8) in his statement Ex. He has categorically stated that when the bullet hit him he was inside the house of Topanram and not in the gali. But in police statement Ex. /D8 he has stated that he was standing in the courtyard of Topanram when he was hit by the bullet. Gurdeep Singh (PW 8) in his statement Ex. D/9 has not stated that Mahendra Singh exhorted Harbhajan Singh to hit Balveer Singh. In fact, in Ex. D/9 he has not stated that Harbhajan Singh fired the gun at Balveer Singh. 23. From the above it is clear that the testimony of the witnesses is not consistent as to where they were at the time when Balveer Singh and Gurubachan Singh were hit. It is very important to note that Balveer Singh was hit at place 'A' as shown in Ex. P/19 which is just opposite to chhapra 'G' where the complainant party had constructed a morcha. It is also not clear why Balveer Singh left the house and came into the open. Since there was fire from both the sides it cannot be ruled out that he was hit by the bullet fired by Mahendra Singh or his associates. There is strong possibility that he was hit by the bullet fired from the chhappra 'G' which is just opposite to the place where he fell down after receiving the bullet. Regarding Gurubachan Singh, the evidence of the witnesses is that he was proceeding towards the west. In other words, his face was towards the west. Admittedly the accused were firing either from the northern or from the eastern side. It was, therefore, impossible that he could be hit by the accused at his left jaw. According to medical evidence he must have been hit from the front side. There is also contradictory evidence as regards the place where Gurubachan Singh was standing at the time of assault. In Ex. D/8, Gurubachan Singh has stated that he was standing in the courtyard of Topanram when he was hit by the bullet. But in his Court-statement he has stated that when he was coming to the road from the school as shown in Ex. P/19 he was hit by the bullet on his left jaw. A perusal of the courtyard as shown in Ex. P/19 would show that the gali is in between the house of Topanram and the school. But in his Court-statement he has stated that when he was coming to the road from the school as shown in Ex. P/19 he was hit by the bullet on his left jaw. A perusal of the courtyard as shown in Ex. P/19 would show that the gali is in between the house of Topanram and the school. There is gali towards the south of the house of Topanram and the school lies towards the south of the gali. There is a material contradiction in the statement of this witness on this point. Admittedly he was proceeding towards the west. After being hit he took shelter in the chhapra of Topanram which is on the southern side of his house and Achhar Singh to the gab. The possibility is that he was hit while he was in the courtyard of Topanram because after being hit it was not possible for Gurubachan Singh to cover any distance. The chhapra is adjacent to the courtyard. The possibility, therefore, is that he was hit near the chhapra inside the courtyard of Topanram. If his statement is accepted that he was proceeding towards the west by coming on the gali from the school it is not possible that he could have been hit on the left side of his jaw because in that case he must be facing the north and even if he has taken a turn to his left he could not have been hit on the left jaw because the bullet must have come either from the north or the east. The possibility can also not be ruled out that when Mahendra Singh and his associates started firing, Gurubachan Singh would ha-e sustained the same while standing in the courtyard. 24. It is also not possible that these witnesses could have witnessed the actual assault because they were inside the house and the accused according to their version were firing from the north and the east. When there is firing, it is difficult for a witness to clearly see that who was being hit and by whom. There is also material contradiction whether Mahendra Singh, accused, exhorted Harbhajan Singh. We have already referred to the statements of the witnesses given under section 161 Cr.P.C. and the statements recorded in the Court. 25. The prosecution has also not proved how Balveer Singh gut the second injury. There is also material contradiction whether Mahendra Singh, accused, exhorted Harbhajan Singh. We have already referred to the statements of the witnesses given under section 161 Cr.P.C. and the statements recorded in the Court. 25. The prosecution has also not proved how Balveer Singh gut the second injury. There is also contradiction whether he was hit by the butt of a gun by any of the accused persons. 26. To sum up our conclusion is that there was a free fight between two groups and the prosecution version has not been able to prove who hit Gurubachan Singh and Balveer Singh. The statement of the witnesses are not reliable. 27. The prosecution has, therefore, failed to prove the offence against the accused persons.We, therefore, accept the appeal set aside the judgment of the learned Addl. Distt. Judge and acquit the appellants of the offences under sections 302, 307 r/w 149, 148, 336 r/w 149 IPC & 27 of the Arms Act. The accused-appellants be released forthwith, if not wanted in any other case.Appeal allowed. *******