K. D. SHAHI, J. ( 1 ) THIS Government Appeal has been preferred against the judgment and order dated 13/06/1980 passed by Shri R. N. Sharma, the then Ist Additional Sessions Judge,nainital, whereby the learned Sessions Judge acquitted accused Kulwant Singh and Pappu alias Komal Singh of the charges under Section 307/34 IPC and accused Bhagat Singh of the charge under Section 307 IPC. ( 2 ) IN brief the facts of the case are that Jogendra Singh, the complainant lodged First Information Report at police station Jaspur, district Nainital on 20/07/1978 at 16. 00 p. m. with the allegations that he and his brother Mahendra Singh are resident of village Khalipar and they have taken the land of Sardar Jag Singh son of Sadhu Singh on Theka. Jag Singh is in military force. Accused Bhagat Singh is real brother of Jag Singh. Bhagat Singh has two sons, namely, Kulwant Singh and Pappu. The accused bore enmity due to taking of land of Jag Singh on Theka by the complainant and they used to damage the crops of the complainant. On 20/07/1978 at about 1. 00 p. m. , the cattle of Bhagat Singh were damaging the crops standing on the land of Theka. At that time Mahendra Singh came and took out the cattle and started to take the cattle to Kanji house. After about one hour when the complainant and Mahendra Singh reached near Khalia Pul, accused Bhagat Singh and his two sons Kulwant Singh and Pappu came and started to snatch the cattle. Bhagat Singh was armed with rifle, Pappu was armed with unlicensed weapon and Kulwant Singh was armed with Lathi. Bhagat Singh exhorted and told "you have got so courage to take the cattle to "kanji House" and fired at Mahendra Singh, which hit at his chest and Mahendra Singh fell down. The complainant wanted to help Mahendra Singh then Bhagat Singh again fired which hit below the knee of the complainant. On the hue and cry of the complainant, Surendra Singh son of Sarwar Singh, Kashmir Singh son of Bakshi Singh, Malkeet Singh son of Preetam Singh and Baba Singh son of Tara Singh came, who were working in their land, and saw the occurrence. On the hue and cry of the complainant, Surendra Singh son of Sarwar Singh, Kashmir Singh son of Bakshi Singh, Malkeet Singh son of Preetam Singh and Baba Singh son of Tara Singh came, who were working in their land, and saw the occurrence. Accused Kulwant Singh and Pappu thought that both the victim, namely, Jogendra Singh and Mahendra Singh have died, there may be a murder case and to make defence, they started to beat their father by Lathi. The rifle of Bhagat Singh was broken by them and was thrown on the ground. Kashmir Singh and Baba Singh took Jogendra Singh at the police station and lodged the FIR. On the basis of the written FIR Exb. ka-7, a chick report was prepared at the police station, which is Exb. ka-13. A case was registered in the G. D. at Rapat No. 18 on 20/07/1978. Copy of the G. D. is Exb. ka-14. ( 3 ) THE victim Jogendra Singh was examined by Dr. A. K. Dube (P. W. 1) at primary health centre Jaspur district Nainital on 20/07/1978 at 4. 30 p. m. The doctor has found the following injuries on his body :-1. Gun shot wound of entry 2 cm x 2 cm on the inner and upper part of left leg just below the left knee joint-directed downwards, forwards and but wards. No tattooing of charring of surrounding skin is present. Margins inverted, fresh bleeding present. 2. Lacerated wound 4 cm x 2-1/2 cm on the inner and posterior part of left knee joint, fresh bleeding present. 3. Gun shot wound of exit 8 cm x 3-1/2 cm on the outer and posterior part of left leg 21 cm above the left lateral mellows of left ankle joint. Margins inverted underlying muscles lacerated and protruding out of the wound. A blunt probe can be passed from injury No. 1 to injury No. 3 fresh bleeding and dark clotted blood present, surrounded by swelling in the area of 25 cm x 20 cm. ( 4 ) THE injury report of Jogendra Singh is Exb. ka-1. ( 5 ) MAHENDRA Singh was also examined by Dr. R. P. Rastogi (P. W. 2) on 20/07/1978 at 7. 45 p. m. at Government hospital, Kashipur. The doctor has found the following injuries at the person of Mahendra Singh :1. ( 4 ) THE injury report of Jogendra Singh is Exb. ka-1. ( 5 ) MAHENDRA Singh was also examined by Dr. R. P. Rastogi (P. W. 2) on 20/07/1978 at 7. 45 p. m. at Government hospital, Kashipur. The doctor has found the following injuries at the person of Mahendra Singh :1. Gun shot wound of entrance with inverted margins in middle of chest 1 cm x 1 cm not probed 7 cm below suprasternal notch. No blackening or tattooing present. 2. Hard substance (shot) palpable on right side chest 4 cm above right nipple and 7-1/2 cm away to right side from the wound. The injury report of Mahendra Singh is Exb. ka-3. Accused Bhagat Singh was lying on the spot. The Constable of police station Jaspur took him to the police station and he was also sent for medical examination. His injuries were examined by Dr. A. K. Dube (P. W. 1) on 20/07/1978 at 6. 15 p. m. The doctor has got the following injuries at his person :1. Lacerated wound 31/2 cm x 3/4 cm x 1 cm on the right side of forehead vertical in direction 3 cm above the right eyebrow. Fresh bleeding present. 2. Lacerated wound 2. 5 cm x 1/2 cm x 3/4 cm on the right outer side of forehead horizontal in direction 4. 5 cm outer to injury No. 1. fresh bleeding present. 3. Lacerated wound 3 cm x 1/2 cm x 3/4 cm on the left side of scalp 10 cm from left ear and 11 cm from left eyebrow. Fresh bleeding present. 4. Contusion 8 cm x 2. 5 cm on the outer side of right fore-arm oblige in direction reddish in colour 10 cm below right elbow joint. Surrounded by swelling in the area of 15 cm x 13 cm with fracture of bone of right forearm. ( 6 ) INVESTIGATING Officer, Shri Brijendra Juyal (P. W. 9) took the investigation of the case in his hands. He went to Jaspur hospital and from the possession of Bhagat Singh recovered two live cartridges and prepared the Fard Ext. ka-9. These two cartridges were of 405 Bore. He visited the spot and prepared the site plan Ext. Ka-10. He took blood stained and simple earth from the spot and prepared the Fard Ext. ka-6. He went to Jaspur hospital and from the possession of Bhagat Singh recovered two live cartridges and prepared the Fard Ext. ka-9. These two cartridges were of 405 Bore. He visited the spot and prepared the site plan Ext. Ka-10. He took blood stained and simple earth from the spot and prepared the Fard Ext. ka-6. ( 7 ) AFTER the investigation was complete, the Investigating Officer submitted the charge sheet against the accused persons. ( 8 ) THE learned Sessions Judge charged accused Bhagat Singh of the charge under Section 307 IPC while accused Kulwant Singh and Pappu were charged of the offences punishable under Sections 307/34 IPC. The charges were read over and explained to the accused persons in Hindi, they pleaded not guilty to the charges and claimed to be tried. ( 9 ) THE P. W. 1, Doctor A. K. Dube had medically examined Jogendra Singh and Bhagat Singh on 20/07/1978, had proved the injuries of both these persons. In the cross-examination he has stated that cumulative effect of injuries of Bhagat Singh could have caused his death as well. ( 10 ) P. W. 2, Dr. R. P. Rastogi had examined the injuries of Mahendra Singh and by his statement he proved the injuries of Mahendra Singh. His injury report is Ext. ka-3. He has also proved the supplementary reports as Ext. ka-4 and 5. ( 11 ) P. W. 3, Mahendra Singh and P. W. 6, Jogendra Singh are the injured in this case. Jogendra Singh lodged the FIR while P. W. 4, Salendra Singh and P. W. 5 Malkeet Singh and P. W. 7, Kashmir Singh are the eyewitnesses. ( 12 ) P. W. 8, Asgar Ali has stated that he had taken Theka from Jag Singh alias Jagat Singh and the same plots he gave to Mahendra Singh and Jogendra Singh, the complainant on Batai. ( 13 ) P. W. 9, Brijendra Juyal is the Investigating Officer of the case and P. W. 10, Rambeer Sharma has proved the chick report and G. D. entries. ( 14 ) AFTER this the prosecution closed its evidence. In his statement Bhagat Singh admitted that Jag Singh alias Jagat Singh has got land and he was in military force. He further admitted Jogendra Singh and Asgar Ali had taken the land of Jag Singh. ( 14 ) AFTER this the prosecution closed its evidence. In his statement Bhagat Singh admitted that Jag Singh alias Jagat Singh has got land and he was in military force. He further admitted Jogendra Singh and Asgar Ali had taken the land of Jag Singh. He also admitted that Jag Singh alias Jagat Singh is his real brother and Kulwant Singh and Pappu are his sons. He denied the entire prosecution story. Similarly is the statement of accused Kulwant Singh and Pappu alias Komal Singh. ( 15 ) THE Court also examined C. W. 1, constable CP 345, Rajdev Tripathi. He has recovered the broken rifle and four cartridges from the spot and prepared the Fard Ext. ka-16. Out of the four cartridges, two cartridges were of 405 Bore and the other two were of 303 Bore as is apparent from the Ext. ka-16. The prosecution also examined D. W. 1, Dr. R. P. Rastogi in their defence who has proved that there were serious injuries to Bhagat Singh, as well. ( 16 ) AFTER hearing the learned counsel for the parties, the learned Sessions Judge found that the charges are not proved against accused persons, therefore he acquitted all the accused persons. Being aggrieved by this acquittal, the State has preferred this appeal. ( 17 ) WE have heard the learned counsel for the parties and gone through the records. The law is clear that in a Government appeal against acquittal, the Court has to examine whether the judgment given by the learned trial Court is perverse and reasonable, and that he should not have given such a judgment. If two opinions are possible and the opinion adopted by the learned Sessions Judge is reasonable and can also be inferred to be correct, in that case, the appellate Court will not interfere with the finding of the trial Court even if the appellate Court is of a different opinion. We have to discuss the statement of the eyewitnessesin the light of the above proposition of law. We have to discuss the statement of the eyewitnessesin the light of the above proposition of law. ( 18 ) IN brief the case of the prosecution is that Bhagat Singh made murderous assault over both Mahendra Singh and Jogendra Singh and when they found that Mahendra Singh and Jogendra Singh both might die, accused Kulwant Singh and Pappu alias Komal Singh beat their father Bhagat Singh to make out the defence and serious injuries were caused at his head. Bhagat Singh was unconscious on the spot and without caring whether he will die or will survive left him there and both the accused persons ran away. Bhagat Singh was lying on the spot in unconscious condition along with broken rifle. The police party came, took it into custody and it is the police party who removed Bhagat Singh and brought him to the hospital and got him examined. ( 19 ) TO the contrary the case of the defence is that Mahendra Singh and Jogendra Singh, their two servants Rafeeq and Chhote surrounded Bhagat Singh and seriously injured him, Kulwant Singh and Pappu were not on the spot. It is the complainant side who broke the rifle of Bhagat Singh and threw on the spot. Neither in the cross-examination nor in the defence evidence, the accused persons have given any explanation how Mahendra Singh and Jogendra Singh suffered injuries. It was argued by the learned counsel for the respondents that Bhagat Singh became unconscious, Kulwant Singh and Pappu were not there. It is not known who injured these persons. It was argued that it might be possible that looking Bhagat Singh seriously injured, some other family members of Bhagat Singh might have attacked over Mahendra Singh and Jogendra Singh. It was further argued that the defence is not bound to explain the injuries of the prosecution side whereas it is the prosecution, which has to explain the injuries of the accused side. ( 20 ) AT any rate, it is clear that both the parties have suffered injuries in the same incident. Accused Bhagat Singh has also suffered serious injuries and he became unconscious and was lying on the spot. It is the police party, which removed him from the spot. ( 20 ) AT any rate, it is clear that both the parties have suffered injuries in the same incident. Accused Bhagat Singh has also suffered serious injuries and he became unconscious and was lying on the spot. It is the police party, which removed him from the spot. As the law is, if both the parties have suffered injuries in the same incident, it is the duty of the prosecution to explain the injuries of the accused side and if they fail to explain the injuries of the accused side, it shall be presumed that the prosecution is not giving a correct picture of the occurrence, it has tried to suppress the origin and genesis of the prosecution case and what the defence says, may also be correct. It is also clear that the Court is not free to make out a third case and if the cases of both the parties are found to be incorrect, the Court has got no option but to acquit the accused persons. The infirmities of the prosecution case may lead the case into acquittal but the infirmities of the accused case will not lead to the conviction of the accused persons unless the prosecution is able to prove the guilt of the accused persons to the hilt without any reasonable doubt. If any doubt arises about the correctness of the prosecution story, the accused persons shall be entitled to acquittal. We have to appreciate the evidence in this light. ( 21 ) P. W. 1, Dr. A. K. Dubey has medically examined the injuries of Jogendra Singh. He found one gun shot wound of entry and corresponding one gun shot wound of exit. He also found a lacerated wound on the knee joint of Jogendra Singh. On the same day at 6. 15 p. m. , he examined the injuries of Bhagat Singh and found one lacerated wound at the forehead and another lacerated wound on the right outer side of forehead near injury no. 1. One lacerated wound on the left side of scalp and one contusion at the outer forearm. The injuries of Bhagat Singh were also kept under observation and he reported that the injuries are possible to have been caused at the same time when the injuries were caused to Jogendra Singh. ( 22 ) P. W. 2, Dr. 1. One lacerated wound on the left side of scalp and one contusion at the outer forearm. The injuries of Bhagat Singh were also kept under observation and he reported that the injuries are possible to have been caused at the same time when the injuries were caused to Jogendra Singh. ( 22 ) P. W. 2, Dr. R. P. Rastogi had conducted the examination of the injuries of Mahendra Singh. He found one injury at the chest of Mahendra Singh. ( 23 ) P. W. 3, Mahendra Singh is an injured and eyewitness. He stated that he used to cultivate the land of Jag Singh alias Jagat Singh on Batai. Jagat Singh is the real brother of Bhagat Singh. The said land was taken by a Mohammadan on Theka and that Mohammadan has given the said land on Batai to Jogendra Singh. He further stated that Bhagat Singh is real brother of Jogendra Singh and for that land on Batai, he bore enmity with the complainant side. He stated further that at about 1. 00 p. m. all the three accused persons came. Bhagat Singh was armed with rifle, Pappu was armed with country made pistol and Kulwant Singh was armed with Lathi and Bhagat Singh fired over him. In the cross-examination, he stated that he had disclosed this fact to theinvestigating Officer that the land was taken on Theka by a Mohammadan. It is not written in the FIR that the land was taken by a Mohammadan on Theka and the Mohammadan has given the said land on Batai to Mahendra Singh and Jogendra Singh. To the contrary, the FIR shows that both the persons have taken the land on Theka from Jag Singh alias Jagat Singh himself. The Investigating Officer has not recorded this fact that the complainant side had taken the land on Theka through some Mohammadan. He stated that he does not know whether Bhagat Singh was injured or not. It is surprising that Bhagat Singh was also seriously injured. He fell there in unconscious condition and was removed by the police from the spot while this Mahendra Singh did not know whether Bhagat Singh was injured or not. This witness tried to suppress the injuries of accused Bhagat Singh, which were caused in the same transaction in which the injuries were caused to him. He fell there in unconscious condition and was removed by the police from the spot while this Mahendra Singh did not know whether Bhagat Singh was injured or not. This witness tried to suppress the injuries of accused Bhagat Singh, which were caused in the same transaction in which the injuries were caused to him. In other words, Mahandra Singh is the main injured witness, he did not explain the injuries of the accused side. ( 24 ) P. W. 4, Salendra Singh is an eyewitness. He has corroborated the prosecution story. He stated that he remained at the spot till the Investigating Officer came. In para 7 of his statement, he stated that he did not see the injuries of Bhagat Singh till he was there. He is said to be an eyewitness and is said to have seen the entire occurrence but in para 6 of his statement he stated that Bhagat Singh was injured and was lying there but he did not see his injury with a view that he may not fall in his share. He was also afraid to take care of him. ( 25 ) AT any rate, this witness "salendra Singh" also did not explain how Bhagat Singh suffered injuries in this occurrence. He did not speak even a single word. He stated in the examination in chief that Bhagat Singh was accompanied with Kulwant Singh and Pappu, Pappu was armed with country made pistol and Kulwant Singh was armed with Lathi. After the fire, Jogendra Singh fell down. Thereafter Kulwant Singh and Pappu started to beat his father Bhagat Singh. He stated that Pappu beat his father from the rifle using it as Lathi. This fact is not mentioned in the FIR that Bhagat Singh was assaulted by Pappu from the rifle of Bhagat Singh himself being used as Lathi. P. W. 5, Malkeet Singh son of Preetam Singh has also given similar statement. P. W. 6, Jogendra Singh is an injured witness. He stated that Kulwant Singh and Pappu thought that Jogendra Singh and Mahendra Singh had died, they may be implicated in murder case, therefore, they started to beat their father. They seriously injured their father and went away. ( 26 ) NEEDLESS to detail the police witnesses and medical evidence. P. W. 6, Jogendra Singh is an injured witness. He stated that Kulwant Singh and Pappu thought that Jogendra Singh and Mahendra Singh had died, they may be implicated in murder case, therefore, they started to beat their father. They seriously injured their father and went away. ( 26 ) NEEDLESS to detail the police witnesses and medical evidence. It is admitted fact that Bhagat Singh also suffered injuries in the same occurrence but the prosecution does not appear to have come before this Court with true case. A person will not create defence by seriously injuring his father. Had they could create evidence, they could have created in hundred ways but killing of his own father was no way to create defence. There is nothing in the statement or in the FIR that father also told his sons to beat him and create defence. Had all the accused persons jointly thought to create evidence by beating father, they could have given simple injuries on non-vital part but definitely they would not have assaulted their father on his head causing serious injury. It is admitted fact that father was lying on the spot in unconscious condition and was shifted to the police station and thereafter to the hospital by the police. If the accused persons have to create defence after beating "their" own father, they would not have left him there alone but could have immediately shifted to the police station and could have lodged the FIR, could have got their father medically examined and prepared injury report. If a person knows that he has to create evidence, he also knows that documentary evidence is necessary and in that case the present accused persons could have taken their father to the police station and subsequently to hospital and would have got documentary evidence but the fun is that till date the accused persons did not lodge any FIR with the police. This fact in itself shows that they were not so prudent that they will mercilessly kill their father only in order to make defence even if the complainant side did not die. Had they also lodged any FIR, the complainant side also might have been prosecuted under Section 307, I. P. C. , the accused persons must be aware of this fact as well but they did not do so. Had they also lodged any FIR, the complainant side also might have been prosecuted under Section 307, I. P. C. , the accused persons must be aware of this fact as well but they did not do so. All these facts clearly indicate that this case istotally false and baseless that Kulwant Singh and Pappu murderously assaulted their own father only to create evidence and left him at the place of occurrence itself to die. Had they to create evidence in defence, the first thing which they could have done was to remove the rifle of their father but it is strange that they went away with Lathi and country made pistol and left the broken rifle of their father to create best evidence for the prosecution. Had they been so wise, they could have also known this fact that the removal of the rifle of the father is the best defence. From the evidence it transpires that the complainant side seriously injured Bhagat Singh and then may be Pappu. Kulwant Singh or somebody else to save him fired which hit Mahendra Singh and Jogendra Singh. Had there been any intention of the accused side to kill Jogendra Singh, they could have also assaulted him on the chest but the injuries of Jogendra Singh are only at knee joint. Had there any intention to kill, they could have repeated the assault over the complainant side. It is fantastic that there is absolutely no evidence or allegation that Kulwant Singh and Pappu gave any blow at Mahendra Singh or Jogendra Singh but it is strange that they had beaten their father alone to create evidence. Had they been there, they could have also assaulted Mahendra Singh. It is not believable that they assaulted only their father only to create evidence in defence. It is not the prosecution case that these two persons had gone only to create evidence in their defence without any intention to cause injuries to the complainant side. ( 27 ) THE injuries of Mahendra Singh, Jogendra Singh and Bhagat Singh are admitted but the prosecution witnesses do not appear to have given a correct statement and did not put a true case before the Court. Prosecution has tried to suppress the origin and genesis of the Mar-peet and if they had done, so the accused side is entitled to acquittal. Prosecution has tried to suppress the origin and genesis of the Mar-peet and if they had done, so the accused side is entitled to acquittal. ( 28 ) WE have gone through the judgment recorded by the learned Sessions Judge. The learned Sessions Judge has appreciated the entire evidence and the view taken by him is totally correct. As we have already said earlier that this is a Government appeal and if the view taken by the learned lower Court may also be correct, the appeal has to be dismissed. ( 29 ) THERE is no force in this appeal. The appeal is, accordingly, dismissed. Appeal dismissed.