JUDGMENT 1. This appeal is directed against the Judgment dated 18.12.1991 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh by which the learned Addl. Sessions Judge has convicted the accused-appellant Gurnamsingh for the offence under section 302 IPC and Section 27 of the Arms Act and sentenced him to imprisonment for life together with a fine of Rs. 500/- and in default of payment of fine, to further undergo rigorous imprisonment for one year for the offence under section 302 IPC and to two years rigorous imprisonment together with a fine of Rs. 100/- for the offence under section 27 of the Arms Act. 2. The prosecution story briefly narrated. Thereafter he fetched the Jeep of Sarpanch Kamailsingh and rushed to the Hospital. 3. PW 5 Dr. Rajendra Kumar Gupta attended Bhagwansingh and informed the Station House Officer, Police Station, Hanumangarh vide his letter Ex. P/5 that Bhagwansingh has been admitted in the Hospital in an injured condition after sustaining fire-arm injuries. 4. On receipt of this information Ex. P/5, A.S.I., Gajesingh rushed to the Hospital and found Bhagwansingh lying in an injured and unconscious condition. He recorded the statement Ex. P/15 of Balwantsingh and on the basis of that statement registered a case under section 307 IPC. Bhagwansingh succumbed to his injuries on the same day. He, therefore, converted the case under section 302 IPC. 5. The A.S.I. Gajesingh inspected the site and prepared the site plan Ex. P/17 and Site Inspection Memo Ex. P/17-A. He also seized the blood stained and controlled soil from the place of occurrence vide memos Ex. P/18 and Ex. P/19. The Inquest report Ex. P/20 was also prepared and after conducting the postmortem examination on the body of Bhagwansingh, the clothes of Bhagwansingh were also seized vide Memo Ex. P/22. The accused Gurnamsingh was arrested on 14.2.1990 vide arrest memo Ex. P/20. 6. While accused Gurnamsingh was in custody, he made a disclosure statement regarding discovery of the gun and a cartridge. Pursuant to that information, he got the above articles recovered vide memo Ex. P/25. 7. The postmortem-examination on the dead body of Bhagwansingh was con-ducted by PW 5 Dr. Rajendra Kumar Gupta. He found 8 ante mortem injuries on the person of Bhagwansingh. Pursuant to that information, he got the above articles recovered vide memo Ex. P/25. 7. The postmortem-examination on the dead body of Bhagwansingh was con-ducted by PW 5 Dr. Rajendra Kumar Gupta. He found 8 ante mortem injuries on the person of Bhagwansingh. According to the Doctor, all the injuries were caused by fire-arm and the above injuries were sufficient in the ordinary course of nature to cause the death. During postmortem examination, five pellets were recovered from the body of Bhagwansingh. 8. After collecting the above incriminating evidence against accused Gumamsingh, the Police filed a challan against the accused in the Court of the learned Chief Judicial Magistrate Hanumangarh who committed the case for trial to the Court of the learned Addl. Sessions Judge No. 1, Hanumangarh. 9. The learned Addl. Sessions Judge framed charges under sections 302 IPC & 27 of the Arms Act against the accused. The accused pleaded not guilty to the charges and claimed to be tried. The prosecution examined as many as 7 witnesses in support of its case. The statement of the accused was recorded under section 313 Cr.P.C. In his statement recorded under section 313 Cr.P.C. the accused has stated that on 4.2.1990 at about 10.00 or 11.00 a.m. he was playing cards with Shri Mahendra Singh, Mohansingh, Madansingh and Malkiyatsingh etc. near the house of Mahendrasingh, that Richhpalsingh came there riding on a bicycle and went away and thereafter again came there. His movements created suspicion in his mind. Mohansingh, therefore, asked him to leave the place. All of a sudden Richhpalsingh again arrived there on his cycle. He took out his pistol and fired the same at Gumamsingh. However, the shot did not come out. Gumamsingh grappled with Richhpalsingh and in that process Richhpalsingh fell down from his bicycle. Gurnamsingh snatched the pistol and threw it towards Mahendrasingh. Mahendrasingh immediately picked up the pistol and went to his house. In the meantime Balwantsingh and his sons came there. Jagdishsingh was armed with a pistol. Balwantsingh asked Jagdishsingh to shoot Gurnamsingh. Jagdishsingh pointed his gun at Gumamsingh and fired the same and the pellets hit him on his head, neck and face. Gurnamsingh immediately started running and took shelter in his house. Thereafter, Balwantsingh and his sons proceeded towards the house of Mahendrasingh. Jagdishsingh was armed with a pistol. Balwantsingh asked Jagdishsingh to shoot Gurnamsingh. Jagdishsingh pointed his gun at Gumamsingh and fired the same and the pellets hit him on his head, neck and face. Gurnamsingh immediately started running and took shelter in his house. Thereafter, Balwantsingh and his sons proceeded towards the house of Mahendrasingh. Mahendra Singh had bolted the doors of his house from inside but Balwantsingh and his sons broke open the doors and forcibly trespassed into his house. Gurnamsingh heard gun shot being fired in the house of Mahendrasingh. Gurnamsingh has further stated that when he went to the Hospital for treatment, Jagdishsingh and Gurmeetsingh further injured him by hitting bricks on his head. Gumamsingh has stated that he saw Mahendrasingh also in an injured condition. Thereafter, he heard that Bhagwansingh had died. To support his defence version, accused Gurnamsingh has produced DW I Mahendrasingh and DW 2 Dr. K.N. Markandey.After appreciating the prosecution evidence, the learned Addl. Sessions Judge concluded that the death of Bhagwansingh was homicidal in nature and he died on account of the fire-arm injuries sustained by him. The learned Addl. Sessions Judge has also come to the conclusion that no pellets or vads were found near the place of the occurrence but from that it cannot be concluded that no occurrence took place. He also disbelieved the defence version that in fact the complainant party was the aggressor and they attacked Gurnamsingh and Mahendrasingh. He believed the prosecution version that the accused killed Bhagwansingh by firing shots at him. The learned Addl. Sessions Judge, therefore, found the above offences proved against the accused beyond all reasonable doubt. 10. We have heard Mr. Doongarsingh, the learned counsel appearing for the accused-appellant and Mr. V.R. Mehta, the learned Public Prosecutor appearing for the State and have very carefully gone through the record of the case. 11. The learned counsel appearing for the accused-appellant has made a very scathing attack on the appreciation of evidence made by the learned Addl. Sessions Judge. He referred to the statements of the material prosecution witnesses and submitted that the most important fact which even noticed by the learned Addl. Sessions Judge was that no sign of firing was found at the place of the occurrence. Sessions Judge. He referred to the statements of the material prosecution witnesses and submitted that the most important fact which even noticed by the learned Addl. Sessions Judge was that no sign of firing was found at the place of the occurrence. PW 3 Balwant Singh has stated that when he and his son Jagdishsingh were proceeding towards the house of Mahendrasingh and he was near the gate of Soni Kotwal, the accused Gurnamsingh fired a shot at him. He immediately sat down and avoided the shot. Thus in such a case either the vad or the pellets ought to have been found near the place where the attack was made by Gurnamsingh. Admittedly no such incriminating evidence was found. According to the prosecution, accused Gurnamsingh fired at Bhagwansingh from the place 'A' marked in Ex. P /17 and deceased Bhagwansingh was standing at place marked in Ex. P/17. At the time of firing the shot accused Gurnamsingh was standing on the wall at a height of about 3 feet from the ground. According to the Medical Officer, if the shot is fired from height of 3 or 4 feet, the injuries caused by pellets would be from upwards to downwards. In the instant case, the direction of the injury was not such so as to suggest that the accused fired gun from a height of 3 or 4 feet. If Bhagwansingh was injured by fire-arm injuries, his injuries must have bled profusedly. No such blood stains were found at the above place. It was not possible for Balwantsingh to have removed Bhagwansingh from the place of the occurrence to his house even with the help of his son Jagdishsingh. 12. The learned counsel has pointedly emphasised the fact that on the statement of injured accused Gurnamsingh Ex. D/7-A, a case was registered under sections 307, 147, 148 & 149 IPC against Balwantsingh and his sons. A similar site plan Ex. D/8 was prepared in the case registered on the statement of Gurnamsingh. In the above case, pellets and vads etc. were recovered from the house of Mahendrasingh and as per the investigation conducted in that case, a prima facie case for the offence under section 307 and various other sections was made out against Balwantsingh and his sons. D/8 was prepared in the case registered on the statement of Gurnamsingh. In the above case, pellets and vads etc. were recovered from the house of Mahendrasingh and as per the investigation conducted in that case, a prima facie case for the offence under section 307 and various other sections was made out against Balwantsingh and his sons. In that case it was found that Balwantsingh and his sons first injured Gurnamsingh and then after breaking open the house of Mahendrasingh they trespassed into that house and injured Mahendrasingh by gun shots. One unlicenced gun was also recovered from the possession of Gurmeetsingh and Jagdishsingh. Even PW 5 Dr. R.K. Gupta has admitted that he examined the injuries of Gurnamsingh on 4.2.1990 when he was admitted in the Hospital and found injuries as mentioned in Ex. D/3. Injuries Nos. 1 & 2 were caused by fire-arm. 13. DW 2 Dr. K.N. Markandey also proved the injuries of Mahendrasingh as mentioned in Injury Report Ex. D/11. These injuries were also caused by a fire-arm. 14. The learned counsel for the accused-appellant has contended that in the instant case, there is absolutely no doubt that two cross-cases were registered : one against Gurnamsingh and the other against Balwantsingh and his sons and in both the cases there were fire-arms injuries. Even in his statement recorded under section 313 Cr.P.C., accused Gumamsingh has admitted that he also sustained fire-arm injuries but the prosecution has not furnished any explanation as to how Gumamsingh and Mahendrasingh sustained firearm injuries. The Investigating Officer has categorically stated that when he investigated the case registered against Balwantsingh and his sons on the basis of the statement made by Gurnamsingh Ex. D/7-A, he found a prima facie evidence against Balwantsingh and his sons under sections 307, 147, 148 & 149 IPC because in that case Gumamsingh and Mahendrasingh were injured. Both of them sustained fire-arms injuries. It was accused Balwantsingh and his party who were the aggressors. Since the prosecution has not came out with the true version of the prosecution case, the conviction of the accused-appellant Gurnamsingh cannot be sustained. 15. On the other hand, the learned Public Prosecutor has supported the impugned judgment of the learned Addl. Sessions Judge and submitted that from the statement of PW 1 Jagdishsingh, PW 2 Richhpalsingh, PW 3 Balwant Singh and PW 5 Dr. 15. On the other hand, the learned Public Prosecutor has supported the impugned judgment of the learned Addl. Sessions Judge and submitted that from the statement of PW 1 Jagdishsingh, PW 2 Richhpalsingh, PW 3 Balwant Singh and PW 5 Dr. R.K. Gupta, it has been proved beyond all reasonable doubt that it was accused Gurnamsingh who fired the shots which proved fatal because pellets hit Bhagwansingh, as a result of which, he died in the Hospital. 16. We have considered the rival submissions made at the bar and have very carefully pursued the record of the case. 17. At the very outset we may state that it has not been disputed that the death of Bhagwansingh was homicidal in nature. PW 5 Dr. R.K. Gupta has very categorically stated that he performed the postmortem-examination on the dead body of Bhagwansingh and found the injuries as mentioned in Injury Report Ex. P/6. He further stated that the injuries were caused by fire-arms and they were sufficient in the ordinary course of nature to cause death. From the statement of PW 5 Dr. R.K. Gupta we further find that he examined the injuries of Richhpalsingh on 8.2.1990 and found two abrasions : one on the right knee joint and the other on the right leg upper ⅓rd. His injury report is Ex. P/8. Dr. R.K. Gupta has also examined the injuries of accused Gumamsingh on 4.2.1990. He was admitted in the male surgical ward of the Hospital and found the injuries mentioned in his Injury Report. According to Dr. Gupta injuries numbers 1, 2 & 3 were caused by fire-arm. It is relevant to mention here that the statement Ex. D/7-A was of accused Gurnamsingh and on the basis of his statement the police registered a case under sections 307, 147, 148 & 149 IPC against Balwantsingh and sons. The learned counsel has also filed the certified copies of the proceedings of that case which was registered on the basis of the statement Ex. D/7-A made by accused Gurnamsingh and which is still pending. 18. We may briefly refer to the evidence of the material eye-witnesses. PW 1 Jagdishsingh has stated that his brothers viz., Richhpalsingh, Gurmeetsingh and Bhagwansingh left their house for going to their field and he and his father remained in the house. After some-time they heard the two gun-shots. D/7-A made by accused Gurnamsingh and which is still pending. 18. We may briefly refer to the evidence of the material eye-witnesses. PW 1 Jagdishsingh has stated that his brothers viz., Richhpalsingh, Gurmeetsingh and Bhagwansingh left their house for going to their field and he and his father remained in the house. After some-time they heard the two gun-shots. His father asked him to find out as to what had happened. Thereupon he enquired and found that some quarrel has taken place near the house of Mahendrasingh. He and Balwantsingh then proceeded in that direction. When Balwantsingh reached near the gate of Soni Kotwal, accused Gumamsingh fired a gun shot at Balwantsingh. Balwantsingh escaped that shot by sitting down on the ground. He has further stated that after this incident, he ran away from the place of the occurrence and took shelter in his own house. He has not seen accused Gurnamsingh firing at Bhagwansingh. 19. PW 2 Richhpalsingh has stated that when he, Gurmeetsingh and Bhagwan singh were going to their field, Gurnamsingh was standing near the house of Mahendrasingh, Mahendrasingh was also with the accused. Mahendrasingh was having a gandasi and Gurnamsingh was armed with a gun. Gurnamsingh exhorted Mahendrasingh to catch hold of Richhpalsingh. Mahendrasingh inflicted 3-4 blows with the blunt side of the gandasi. At that time Gurmeetsingh made good his escape from the place of the occurrence and took shelter in his own house. He does not remember how Bhagwansingh got injured. 20. PW 3 Balwantsingh has stated that when he and Jagdishsingh were proceeding towards the house of Mahendrasingh accused Gurnamsingh fired his gun at him when he was near the gate of Soni Kotwal. Pellets did not hit him. Gurnamsingh then went to his house and firmed his gun again at Bhagwansingh while standing on the wall of his house. The Pellets hit Bhagwansingh on his face and chest etc. Bhagwansingh fell down after sustaining the pellet injuries. Thereafter he and Jagdishsingh lifted Bhagwansingh and brought him to the hospital in a Jeep. In his cross-examination, PW 3 Balwantsingh has categorically stated that a few drops of blood fell on the place of the occurrence. He also admitted that the accused also got a case registered against him and his sons and that Criminal case is still pending against them. 21. In his cross-examination, PW 3 Balwantsingh has categorically stated that a few drops of blood fell on the place of the occurrence. He also admitted that the accused also got a case registered against him and his sons and that Criminal case is still pending against them. 21. From the above evidence it is clear that some occurrence took place on that day in which Bhagwansingh sustained fire-arm injuries on his face and chest which eventually proved fatal. At the same time, Mahendrasingh and accused Gurnamsingh also sustained fire-arm injuries. The duration of the injuries is the same. Two cross-cases were registered : one against accused Gurnamsingh and the other against Balwantsingh and his sons on the statement Ex. D/7-A made by Gurnamsingh. Since Gurnamsingh and Mahendra Singh also sustained injuries during the same occurrence, it was the bounden duty of the prosecution to have explained how these two persons sustained the above fire-arm injuries. The prosecution has not cared to explain the injuries sustained by Gurnamsingh and Mahendrasingh. As to what is the effect of such an omission, we may refer to the observations made by the Apex Court in Onkarnath v. State of AIR 1974 SC 1550 , wherein it has been held that in a murder case the non-examination of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is very important circumstance from which the Court can draw the following inferences:- (a) that the prosecution had suppressed the genesis and the origin of the occurrence and has thus not presented the true version, and (b) that in case there is defence version which explains the injuries on the person of accused, it is rendered probable so as to throw doubt on the prosecution case. Thus the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance when the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. Thus the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance when the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent so independent and dis-interested, so probable, consistent and credit worthy, that it far out-weighs the effect of the omission on the part of the prosecution to explain the injuries. 22. As stated above, in the instant case the injuries sustained by Mahendrasingh and accused Gurnamsingh were neither minor or superficial. They are fire-arm injuries. Admittedly, the prosecution has not given any explanation as to how Gurnamsingh and Mahendrasingh sustained the above fire-arm injuries. The accused has categorically stated in his statement recorded under section 313 Cr.P.C. that he and Mahendrasingh were playing cards with some other persons near the electric poll situated near the house of Mahendrasingh. Richhpalsingh came there on his bicycle. His movements created suspicion. He came and went and then again came and this time he fired a gun at Gurnamsingh but the shot did not come out. Thereafter Gumamsingh and Richhpalsingh grappled with each other. Mahendrasingh ran away and took shelter in his house after bolting the main gate of the house from inside. The defence has produced definite evidence that thereafter Balwantsingh and his sons forcibly broke open the doors of the house of Mahendrasingh and entered into his house and gun shots were fired. This is proved by the fact that wads and pellets were recovered from the house of Mahendrasingh. The recovery of pellets from the house of Mahendrasingh corroborates the defence version of the accused that Balwantsingh and his sons used their fire-arms in the house of Mahendrasingh. Thus the defence version is rendered probable so as to throw doubt on the prosecution case. 23. Moreover, the main prosecution case is alleged to happen in two parts. In the first part, it is alleged that Gumamsingh fired at Balwantsingh when he reached near the gate of Soni Kotwal. However, no sign or marks of such assault were found at the place of the occurrence. 23. Moreover, the main prosecution case is alleged to happen in two parts. In the first part, it is alleged that Gumamsingh fired at Balwantsingh when he reached near the gate of Soni Kotwal. However, no sign or marks of such assault were found at the place of the occurrence. It is, therefore, very difficult to accept the version of Balwantsingh or Jagdishsingh regarding this first incident. Regarding second incident also, no pellets were found at the place of the occurrence. A few blood-stains were found which do not compete in probability with that of the prosecution case looking to the multiple fire-arm injuries sustained by Bhagwansingh. No independent witnesses have been produced by the prosecution to support its case, although according to the site-plan, there are many residential houses in the vicinity of the place of the occurrence. 24. For the reasons stated here in above, we are firmly of the view that the prosecution has failed to prove the offences under sections 302 IPC & 27 of the Arms Act against the accused-appellant Gurnamsingh and hence the conviction and sentence recorded by the learned Addl. Sessions Judge cannot be sustained. 25. In the result, we accept this appeal and set aside the conviction and sentence passed by the learned Addl. Sessions Judge No. 1, Hanumangarh against accused-appellant Gurnamsingh u /ss. 302 IPC & 27 of the Arms Act. The accused-appellant Gurnamsingh is acquitted of the offences under sections 302 IPC & 27 of the Arms Act.The accused-appellant Gurnamsingh is in Jail. He be set at liberty forthwith, if not required, in any other case.Appeal allowed. *******