JUDGMENT I.P. Singh, J. The aforesaid criminal appeal and Criminal revision have been heard together and this judgment will govern both of them. Criminal Appeal No. 251 of 1985. This appeal is directed against the Judgment dated 26.3.1985 passed by Shri Paras Nath Sinha, Additional District and Sessions Judge VI, Gaya in Sessions trial No. 188 of 1982. by this judgment the learned additional Sections Judge convicted appellant No.1 under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. Appellant No.2 was convicted under Section 302/24 of the Indian Penal Code and was sentenced to undergo imprisonment for life. 2. The prosecution case, in short, is that at about 7.30 P.M. on 31.8.1981 the informant. Faguni Yadav (P.W.) was sitting on the Achhebat Bridge situated near Gaya Town. P.W.1, Barhan Yadav and one Naresh Yadav (not examined) were also sitting with him. At that time Bhuwan Yadav was going from east to west. When he reached ahead of the eastern end of the bridge appellant no.1 Anand Lal alias Anand Prakash Srivastrava, fired at him form his country made pistol which hit Bhuwan Yadav. Appellant No.2 Vijay Lal alias Vijay Prakash Srivastava, also tired one blank shot from his country made pistol. The other five accused persons who have since acquitted by learned trial Court were instigating these appellants. The incident was witnessed by P.Ws. 1, 4, 5 and 6. Bhuwan Yadav the deceased sustained injuries in his thigh and he succumbed to those injuries after being taken to the hospital. The police after completing the investigation submitted charge-sheet against all the seven accused persons who were committed to the court of session. On trial, the other 5 accused persons were acquitted but the appellants were convicted in the manner indicated above. 3. In this appeal, the appellants have contended that no occurrence as alleged by the prosecution did ever take place. They have totally denied the alleged occurrence. They have contended that they have got some land dispute with one Sambhu Sharan who got them implicated in a number of cases through his Barahil Bhuwan Yadav who was himself a notorious criminal. Bhuwan Yadav was shot at by some unknown persons and taking advantage of this unfortunate incident these appellants have been falsely implicated in this case on mere suspicion. 4. In all ten (10) P.Ws. were examined in this case. Bhuwan Yadav was shot at by some unknown persons and taking advantage of this unfortunate incident these appellants have been falsely implicated in this case on mere suspicion. 4. In all ten (10) P.Ws. were examined in this case. P.W.9 is the doctor who conducted the post mortem examination on the dead body of the deceased. P.W.10 is S.I. of Police who investigated the case. P.Ws. 2, 3 and 8 are formal witnesses. P.W.7 is the in formant. The rest P.Ws. have claimed to be the eye witnesses of the alleged occurrence. 5. The appellants have contended that the medical evidence on record does not fit with the prosecution case as will be clear from the evidence of the doctor (P.W.9) who found three injuries on the person of the deceased which according to him were caused by the three different shots. According to the prosecution case, only one shot was fired at the deceased by appellant No. 1. So far as appellant No.2 is concerned, he is said to have opened a blank fire which did not hit the deceased. From this it would appear that according to the prosecution case, the deceased has received only one gun shot injury. It has further been contended that though the doctor (P.W. 9) did not find any exit wound on the body of the deceased still the pellet could not be found in the body Further, according to the case of the prosecution, the firing was done from a close distance of about 3 feet from the deceased but P.W.7 did not find any blackening or charring mark near the wound of the deceased. It has been further contended by the appellants that before holding the post mortem examination by P.W.9, the deceased was examined by a doctor of Pilgrim Hospital who had bandaged the would but he has not been examined in this case to show that he has extracted the pellets from the wounds which were caused by the gun fire. The alleged place of occurrence is highly suspicious and in the normal course no body will choose such a busy thorough fare for committing the alleged offence. The Investigating Officer did not find any blood mark at the alleged place of occurrence which is said to have taken place at 7.30 PM. The alleged place of occurrence is highly suspicious and in the normal course no body will choose such a busy thorough fare for committing the alleged offence. The Investigating Officer did not find any blood mark at the alleged place of occurrence which is said to have taken place at 7.30 PM. on 31.8.1981 which time it becomes dark and it was not possible for the witnesses to have identified the assailants. 6. The appellants have further contended that the impugned judgment is bad in law wrong on facts. The prosecution case is highly improbable. P.W.9 found three injuries on the body of the deceased which could not have been caused by one gun shot. Learned court below should have discarded the prosecution case as improbable and not supported by the medical evidence on record. The learned court below has completely overlooked the evidence of the Doctor and has committed a serious error in passing the impugned judgment. The very fact that the Investigating Officer (P.W.10) did not find any blood mark at the alleged place of occurrence clearly goes to discredit the entire prosecution case. On these grounds, it has been contended that the judgment of conviction be set aside and the appellants be acquitted. 7. P.W.7 is the informant. He has claimed to be an eye witness of the alleged occurrence. He has stated that appellant No.1 had opened fire on the deceased while appellant No.2 had opened a blank fire (Asmani fire). It is clear from his evidence that only two shots were fired by the appellants. It is further clear that only on shot had hit the deceased which was fired by appellant No.1 The other witnesses who have been examined one the point of occurrence are P.Ws. 1, 4, 5 and 6. They have also supported this version of the informant (P.W.7) that it was only one shot tired by the appellant No.1 which had hit the deceased. Thus, the prosecution version on this point is consistent and clear. 8. P.W.9 is Dr. M.K. Sinha who held post mortem examination on the dead body of the deceased. At the relevant time he was posted in Magadh Medical College, Gaya in Forensic Department. He examined the wounds on the person of the deceased- bandage. On opening the bandage, three penetrating wounds were found on the person of the deceased. 8. P.W.9 is Dr. M.K. Sinha who held post mortem examination on the dead body of the deceased. At the relevant time he was posted in Magadh Medical College, Gaya in Forensic Department. He examined the wounds on the person of the deceased- bandage. On opening the bandage, three penetrating wounds were found on the person of the deceased. One wound was located over the middle of the left injunial region. The second wound was found approximately 3" above the left middle injunial point. The third injury was found approximately 11/2" below injury No.1. He prepared the post mortem examination report which is Ext. 4. 9. The learned counsel appearing on behalf of the appellants has seriously contended before me that the medical evidence on record does not fit with the case of the prosecution and on this ground alone the judgment of conviction should be set aside. At the outset, he has pointed out that the post mortem examination report shows that when the dead body was produced before the doctor (P.W.9), it was already bandaged. It is not clear as to who had bandaged or dressed the wounds on the person of the deceased. The prosecution has completely failed to adduce any evidence on this point. This is a vital lacun in the case of the prosecution. P.W.9 has further stated that he did not find any pellet in the wounds of the deceased and according to him since the wounds were bandaged and dressed it indicated that first aid was administered to the deceased. He has also stated in his evidence that if a cartridge has got more than one load and it is tired from a distance often feet, all the charges will not enter in the body in a mass but it will be scattered. In his opinion, if the shot was fired from a distance of 10" then these injuries found on the persons of the deceased were possible by one shot. However, according to the case of the prosecution, the shot was fired from a distance of only three feet from the deceased. In this connection, a reference may be made to the evidence of P.W.4, Ram Swarup Yadav, who has clearly stated in his cross-examination that at the time when the appellants had opened fire on the deceased they were at a distance of 2 cubits from him. In this connection, a reference may be made to the evidence of P.W.4, Ram Swarup Yadav, who has clearly stated in his cross-examination that at the time when the appellants had opened fire on the deceased they were at a distance of 2 cubits from him. This will clearly go to show that this firing was not resorted at a distance of about 10 feet from the deceased. As such, the evidence of P.W.9 that the injuries found on the person of the deceased, could be caused by one shot, if the tiring was resorted from a distance of 10 feet from him, is of no consequence. From this it would appear that the medical evidence on record does not fit with the evidence of the eye witnesses as also with the case or the prosecution. It has been submitted before me that this is a single great lacuna in the case of the prosecution which will go to demolish the entire case. In this connection my attention has been drawn to some reported decisions which I am going to discuss as noted below. 10. It has been consistently held by the Hon'ble Supreme Court that if the evidence or the eye-witnesses is contradicted by the medical evidence on record the same is not fit to be relied upon. In this connection my attention has firstly been drawn to the case of Jagir Singh Vs. The State (Delhi Administration), AIR 1975 S.C. 1400 . In the said case the eye witnesses had stated that the accused fired the shot witl1 arm stretched horizontally with a slight bend downwards. The Forensic expert in his evidence asserted that the hand which fired the shot must have been at a slightly lower level than the part or the body hit by the shot and barrel of the weapon would be slightly pointing upwards. It was held by the Hon'ble Supreme Court that the eye-witnesses, evidence being in conflict with the unimpeachable expert evidence, which was not even attempted to contradicted in cross examination, cannot be accepted. 11. Also reliance has been placed on the case of Ram Narain, Jaggar Singh & others Vs. The State of Punjab ( AIR 1975 SC 1727 ). In this case, the medical evidence showed two gun shot injuries whereas, P.Ws. stated only about one tire from the gun. 11. Also reliance has been placed on the case of Ram Narain, Jaggar Singh & others Vs. The State of Punjab ( AIR 1975 SC 1727 ). In this case, the medical evidence showed two gun shot injuries whereas, P.Ws. stated only about one tire from the gun. The injuries on the deceased were found on the chest and the hand. It was held by the Hon'ble Supreme Court that where the evidence of P.Ws. is totally inconsistent-with the medical evidence or the evidence of ballistic expert this is the most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case and it would be difficult to convict anybody on such evidence. 12. In this connection, a reference may also he made to the case of Mohinder Singh Vrs. The State ( AIR 1953 SC 415 ) in which it was observed as follows :- "1t is obvious that where the directed evidence is not supported by the expert evidence, then the evidence is waiting in the most material part of the prosecution case and it would be difficult 10 convict the accused all the basis of such evidence.” It was further held in this case that "In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused.” 13. Thus, the law on this point appears to he well settled, So far as the facts of the case are concerned, it is clear that only one gun shot had hit the deceased. This gun shot was tired from a distance of only 3 feet. P.W.9, the doctor, did not find any charring mark near the entry point of the injury. He also did not find any exit point on the person of the deceased. He did not find any pellet in the body of the deceased. The doctor who gave first aid to the deceased and bandaged the injuries had not been examined. P.W.9, the doctor, did not find any charring mark near the entry point of the injury. He also did not find any exit point on the person of the deceased. He did not find any pellet in the body of the deceased. The doctor who gave first aid to the deceased and bandaged the injuries had not been examined. So far as the injuries found on the person of the deceased are concerned, it is clear from their location that they could not have been caused by one gun shot. Even the Investigating Officer (P.W 10) did not find any blood mark near the place where the deceased is said to have sustained the injury. it is, thus clear that the prosecution evidence on record does find support from the medical evidence. Rather the same is in conflict with unimpeachable expert evidence of the doctor. Therefore, the same can not be relied upon as held in the above mentioned case. It is totally inconsistent with the medical evidence on record and this is the most fundamental defect in the prosecution case which has not been explained. As such, this alone is sufficient to discredit the entire prosecution case. 14. The prosecution case also appears to be improbable. It is said to have taken place near a bridge which is a public thorough fare. If a person would like to kill or shoot down another person, he will obviously not choose such busy thorough fare for committing any such offence since the deceased was not unknown to him and he could have opened the fire on him at any secluded place. On this ground also the prosecution case appears to be improbable. 15. From the discussions made above, it is perfectly clear that the judgment of conviction of the learned court below can not be sustained for the reasons stated in this judgment. As such this appeal is allowed and the judgment of conviction is set aside. The appellants are directed to be set at liberty. Criminal Revision No. 446 of 1985. 16. This is an application in revision under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). This revision application has been filed against the judgment dated 26.3.1985 passed by Shri Paras Nath Sinha, learned Additional Sessions Judge VI, Gaya according to which he acquitted opposite party nos. Criminal Revision No. 446 of 1985. 16. This is an application in revision under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). This revision application has been filed against the judgment dated 26.3.1985 passed by Shri Paras Nath Sinha, learned Additional Sessions Judge VI, Gaya according to which he acquitted opposite party nos. 1 to 5 of the charge under Section 302/34 of the Indian Panal Code. 17. The facts of this case have already been stated in the Criminal Appeal No. 251 of 1985 and the need not be repeated again. From the prosecution case, it would appear that altogether there were seven accused in this case out of who five were acquitted by the learned trial Court and the present revision application has been filed against their acquittal. The remaining two accused persons were convicted by the learned trial court under sections 302 and 302/34 of the Indian Penal Code and were sentenced to undero imprisonment for life. From judgment passed in Criminal Appeal No. 251 of 1985 as noted above it would become clear that the judgment of conviction of those two persons also could not able sustained and has been set aside and they have been acquitted of the charges framed against them. So far as the remaining five accused persons; who are opposite parties in the present revision application is concerned, it is clear that the prosecution has got no case against them and they have been rightly acquitted by the learned trial court. The main ground taken in this revision application is that since the learned trial court has accepted the evidence of P.W.s. 1,4,5,6 and 7 on the basis of which he convicted their evidences so far as the present opposite parties are concerned and, therefore, the judgment of acquittal passed against them should be set aside. It was also contended that the learned trial court has lost sight of the. fact that the scope of the common object as noticed in Section 34 of the Indian Penal Code will clearly bring the present opposite parties within the net of the prosecution case and they should have been convicted on this ground alone. 18. I have heard the petitioner in detail on these points. fact that the scope of the common object as noticed in Section 34 of the Indian Penal Code will clearly bring the present opposite parties within the net of the prosecution case and they should have been convicted on this ground alone. 18. I have heard the petitioner in detail on these points. No doubt, under Section 34 of the Indian Penal Code the common object has to be determined on the basis of the evidence on record. In the present case, however, it is clear that the prosecution has failed to establish any common object or common intention so far as the present opposite parties are concerned. Hence I do not find any merit in this submission. So far as the rejection of the evidence of eye witnesses relating to opposite party nos. 1 to 5 is concerned, it is clear that it is the duty of the court to separate the grain from chaff and simply because he found the evidence against two of the accused consistent, it can not be said that he could not have acquitted the other accused persons (present O.P. Nos. 1 to 5) against whom the eye witnesses had made their statements. On the perusal of the judgment of the learned trial Court, it is clear that he has valid reasons to disbelieve the prosecution case so tar as opposite party nos. 1 to 5 concerned. The learned counsel appearing on behalf of the petitioner has not been able to show that any illegality or irregularity was committed by the learned trial court so far as opposite party nos. 1 to 5 to 5 are concerned and, therefore, on this ground the judgment of the learned trial court cannot be challenged by the informant. 19. For the reasons stated above, I do not find any merit in this application. It is accordingly dismissed. 20. As stated above and the Criminal Appeal No. 251/85 is allowed as indicated above and the Criminal Revision No. 446/85 is dismissed for the reasons state above. N.N. Singh, J.-I agree.