JUDGMENT 1. - Being aggrieved by the judgment and order of conviction passed by the Sessions Judge, Hanumangarh in sessions case No. 193/94, convicting the appellant-accused under section 302 IPC the appellant above named has preferred this appeal on the grounds mentioned in the memo of appeal. 2. The facts giving rise to the present appeal, stated briefly, are that a first information report was lodged bearing No. 117/93 at Police Station, Tibi by one Jogendra Singh to the effect that there was dispute over water connection of irrigation water between Tara Singh and Buta Singh which resulted ultimately in Buta Singh killing Tara Singh in the night of 3/4.7.1993. It is mentioned in the FIR that quarrel between Buta Singh and Tara Singh took place and there was a scuffle between Balvinder Singh and Singara Singh son of Tara Singh. When they were separated Buta Singh fired two shots in the body of Singara Singh in order to kill him and Singara Singh thereafter fell to the ground. Thereafter Buta Singh fired on Mahendra Singh who went to rescue Singara Singh and Mahendra Singh, the father, also died on the ground. Investigation was taken up on the basis of this report. The accused was arrested. The prosecution in all led evidence of 18 witnesses seeking to prove its case. As will be seen from the narration hereinafter the prosecution has miserably failed to prove its case beyond reasonable doubt or for that matter the prosecution has miserably failed to prove its case at all. It does not even create a doubt. Of the 18 witnesses examined by the prosecution in this case, 11 witnesses have turned hostile. They include eye-witnesses to the incident as also the persons who are close relation of the deceased. For instance, PW 11 Jogendra Singh is the brother of deceased Singara Singh and son of Mahendra Singh who was hurt in the incident. This Jogendra Singh who has lodged the first information report has turned hostile and denies any knowledge of the incident. Similarly, PW 13 Balkar Singh is also brother of deceased-Singara Singh and turned hostile denying any knowledge of the incident. The real brothers of the deceased have thus turned hostile. This Jogendra Singh who has lodged the first information report has turned hostile and denies any knowledge of the incident. Similarly, PW 13 Balkar Singh is also brother of deceased-Singara Singh and turned hostile denying any knowledge of the incident. The real brothers of the deceased have thus turned hostile. In the cross-examination of the hostile witnesses the prosecution made a suggestion that because of the compromise arrived at between the parties out of the Court the witnesses have denied to have any knowledge about the incident. This suggestion has been stoutly denied by all the witnesses. The entire evidence of the hostile witnesses is, therefore, liable to be rejected. 3. PW 7 Dr. Rajendra Kumar Gupta by his deposition proved that the death of Singara Singh was homicidal in nature about which there can be no doubt. The deposition of PW 8 Indra Lal, PW 9 Harphool and PW 10 Khadam Ali read together further proves that the deceased-Singara Singh met homicidal death by bullet injuries caused to him by bullets which were fired from a gun which was registered and licenced in the name of accused-Buta Singh. For the reasons stated here in above there is no evidence to connect the accused with the fire of that gun. 4. The prosecution in this case has proved that the homicidal death of Singara Singh was caused by gun shot fired from the gun belonging to the accused but the prosecution has failed to show that the gun was fired by the accused. It is undisputed position on record that at the time when the incident is alleged to have taken place in addition to the accused-Buta Singh his sons were also present at the site. The possibility of the gun being used by any of them has not been conclusively excluded by the evidence of prosecution. In the absence of any such evidence, it cannot be said with any amount of certainty that the gun fire by which the deceased-Singara Singh met homicidal death was fired by Buta Singh alone. 5. The learned Judge has recorded the order of conviction solely on the ground of the fact that the gun admittedly belongs to Buta Singh and it is proved that the death is caused by that gun. He has, therefore, inferred that the gun must have been fired by Buta Singh. 5. The learned Judge has recorded the order of conviction solely on the ground of the fact that the gun admittedly belongs to Buta Singh and it is proved that the death is caused by that gun. He has, therefore, inferred that the gun must have been fired by Buta Singh. There is no proof to back this inference and, therefore, we are unable to accept the order of conviction as recorded by the learned Sessions Judge. 6. From the aforesaid discussion the conviction and sentence of the accused u/ s. 302, IPC cannot be sustained whereas his conviction and sentence under Arms Act will have to be maintained, for the reason that admittedly the gun has been fired in violation of the provisions of the Arms Act. It cannot be pin-pointed as to who fired the gun and in the absence of any evidence it was Buta Singh who did it, it will have to be presumed that the gun has been fired causing violation of the Arms Act. 7. In the result, the appeal is partly allowed. The order of conviction u/ s. 302, IPC is set aside and the conviction and sentence under the Arms Act is maintained. The accused has already undergone the punishment for the offence under the Arms Act. He, therefore, may be released forthwith, if not required in any other offence.Appeal partly allowed. *******