JUDGMENT R.P. Gupta, J. 1. The State of Madhya Pradesh, feeling aggrieved by judgment of acquittal dated 13-4-88, passed by Addl. Sessions Judge, Satna, in S.T. No. 14/87 acquitting all the Respondents-accused for the charges Under Section 302 and 302/34 IPC, has preferred this appeal. 2. The prosecution case, which did not find favour with the trial court, was that on 20-10-86 at about 5-30 p.m. in the area of village Chakdahi within the jurisdiction of P.S. Rampur-Baghelan, Distt. Satna, deceased Rambaksh was passing in front of the house of Respondent-accused Bhagwatdeen and the other accused persons were standing by his side. There was previous enmity and litigation between two sides. Accused-Respondent Bhagwatdeen had even lodged a police report against the deceased Rambaksh on the same day earlier. Bhagwatdeen was having a single barrel muzzle loading gun at that time. The other accused-Respondents pursuaded him to shoot Rambaksh, passing in the street. So Bhagwatdeen shot at Rambaksh. The fire hit on the left side of buttock of Rambaksh and some pellets emerged from the lower abdomen below the naval and at other points. Some got embodied in the body. Rambaksh fell down. In fact at that moment Rambaksh was returning from his field along with his wife Kailasia (PW 8) and his two sons Mathura (PW9) and Ramshankar (PW16). Kailasia (PW8) was ahead of all the four. Rambaksh was behind her and above two sons were following Rambaksh. That was the situation when the shot was fired. Eye witness Gaibi (PW17) was fixing his fanching. Ramadhar (PW6) was sitting on the 'Chabutra' of his shop. These witness saw the shooting. Rambaksh fell towards 'Ban' and shouted that Bhagwatdeen has shot him, then Basanttal (PW1) and other reached there. Basantlal (PW1) lodged report of the incident as per FIR (EX.P-2) to the police on that very day at about 9-30 p.m. at P.S. Rampur-Baghelan, narrating the incident on the basis of what was told to him by the aforesaid four witnesses i.e. eye witnesses of the incident. Rambaksh deceased Bhagwatdeen and Chukamna accused are real brothers. PW 1 Basantlal is son of Ramlakhan. Accused Chunkawan is son of Bhagwadeen. Shobhnath and Ramswaroop accused are sons of Chunkawan accused. Accused Rambaksh is son-in-law of Bhagwatdeen. Admittedly civil and criminal litigation has been pending between deceased on the one hand and his accused brothers for the last about 15 years about land. 3. PW 1 Basantlal is son of Ramlakhan. Accused Chunkawan is son of Bhagwadeen. Shobhnath and Ramswaroop accused are sons of Chunkawan accused. Accused Rambaksh is son-in-law of Bhagwatdeen. Admittedly civil and criminal litigation has been pending between deceased on the one hand and his accused brothers for the last about 15 years about land. 3. Injured Rambaksh therefter was sent to Distt. Hospital Satna where Dr. M.A. Tajir (PW 3) examined Rambaksh and found following injuries on his person: (i) Gun shot entry wound: Left Glutial 1" diam oval shaped margin lacerated- scortched and black. (ii) Gun shot exit wound size 1" x 1/2" - 2" away from midline and about 4" below the level of umblicus, loop of intenstine obscuring the wound are prolapsing the wound-margin everted. (iii) Pallet woud 1/4" diagram: (a) left arm lower third part aspect three in Nos. - blackening, (b) left glutial - 2" below the wound No. 1 one in number (c) Right glutial - two in No. blackening (iv) low, cold, clammy stain, pulse 100/minute feeble, B.P. not recordable, Breath 20/minute admitted in MSWI in Distt. Hospital Satna for further exam, and final opinion. 4. Rambaksh expired in the Distt. Hospital that very night. On receiving intimation of death from Dr. A.M. Tajir (PW 3) the police, after preparing inquest on the body, sent it for post-mortem examination and Dr. K.K. Shukla (PW 15) conducted autopsy and he noted the following injuries: (i) Rigor mortis present all over the body: (ii) Cadaveric rigidity present on dependent part of the body: on front part of body (iii) oval wound 1" x 1/2" diameter in right side of lower abdomen 2" away from midline 4 1/2" below the umblicus (exit wound); (iv) loop of small intestine coming out from above wound, blood around the wound. on the back of body (v) irregular roughly oval wound at the middle of left hip size 1" x 1" scorching and blackening and burning of skin around the wound, (entry wound): (vi) one pellet mark blackening of skin 2 1/2" below the entry wound on left hip size 1/4" x 1/4". (vii) Three pellet marks blackening of skin on the back of left upperarm of size 1/4" x 1/4". (viii) Two pellet marks blackening of skin on right him size 1/4" x 1/4". (ix) There was fracture of the hip-bone. 5. (vii) Three pellet marks blackening of skin on the back of left upperarm of size 1/4" x 1/4". (viii) Two pellet marks blackening of skin on right him size 1/4" x 1/4". (ix) There was fracture of the hip-bone. 5. According to both these doctors the wound on the left buttock was anti mortem wound of the gun shot and the wound on the stomach below the navel exit wound. The skin at these wounds had become blackened and burnt. The autopsy surgeon also extracted a metal piece 1/2" x 1/2" x 1/2" size (quadrangular in shape) detected from abdominal cavity of the deceased, which he handed over to the police. The death was found to have occured within 6 to 24 hours of the post-mortem examination and the cause of death was shock following excessive bleading from the wounds. The autopsy report is Ex.P/26. 6. The Investigating officer Narendra Kumar Pandey (P.W.18), apart from other steps of investigation, seized from the scene of crime some iron pellets. These iron pellets were found lying on th scene of crime as per memo (Ex.P.8). Blood stained and control earth soil were also taken into possession from the spot by ASI Narendra Kumar Pandey (PW 18). Accused-Respondent Bhagwtdeen was allegedly arrested on 24-10-87 and on interrogation he disclosed about the concealed gun. This gun was recovered from heap of grass kept behind his house. It was recovered vide memoradum (Ex. P-7). Memo Ex. P-6 is disclosure statement of Bhagwatdeen accused. It was a licensed gun and license had also been recovered from this accused. The evidence of this recovery of gun has been rejected by the trial court in view of narration of eye-witnesses and other witnesses that Bhagwatdeen was taken by police along with his gun on the night after the shooting. The investigating officer had also seized from the scene of crime on the morning of 21-10-86 three other pellets used in muzzle loading gun. The gun and pellets so recovered from the spot and from the body of deceased Rambaksh were sent to Ballistic expert and the Ballistic report of J.P. Nigam Asstt. Director Ballistics and Asstt. Chemical Examiner is Ex.P-32. Ballistic expert Shri Nigam reports that this gun has been recently fired but not exactly as to how long back. The gun and pellets so recovered from the spot and from the body of deceased Rambaksh were sent to Ballistic expert and the Ballistic report of J.P. Nigam Asstt. Director Ballistics and Asstt. Chemical Examiner is Ex.P-32. Ballistic expert Shri Nigam reports that this gun has been recently fired but not exactly as to how long back. It was further opined that the bellets recovered from the body of deceased Rambaksh and also from the spot could have been discharged from this gun. 7. The prosecution has examined 18 witnesses in all, of whom two doctors, investigating officer, Basant Kumar who gave first information report, eye witnnesses namely Ramadhar (PW 6), Kailasia (PW 8), Mathura (PW 9), Ramashankar (PW 16) and Gaibi (PW 17) are the main witnesses on which reliance was placed, apart from the witnesses before whom the accused Bhagwatdeen disclosed about his gun and recovery of the gun was made on his pointing out from a concealed spot behind his house. The witnesses to inquest are formal witnesses on the record. A dying declaration Ex. P-27 of the deceased recorded by the I.O. Narendra Pandey (PW 18) at the scene of crime after arriving there on report by PW 1, which the deceased narrated having been shot by Bhagwatdeen from the door of his house at the instigation of other accused persons, has been proved. 8. The eye witnesses had supported the version of prosecution that the accused Bhagwatdeen on the instigation of other accused, with his muzzle loading gun, fired at Rambaksh who was passing in the street in front of the house of Bhagwatdeen along with his wife and sons as already noticed. However, testimony of these witnesses did not find favour with the trial court for the following reasons: (i) There was discrepancy in the testimony regarding the distance from which the shot was fired by Bhagwatdeen- the accused. (ii) There was improvement in their testimony on the aspect of distance as also whether the Respondent-accused Bhagwatdeen fired the shot from standing posture or bending posture. (ii) There was improvement in their testimony on the aspect of distance as also whether the Respondent-accused Bhagwatdeen fired the shot from standing posture or bending posture. (iii) There was burning of skin around the wound suggesting as per doctor's evidence that the firing must have been done within a range of 6" to 3 1/2 feet from the entry point of the wound while some witnesses were suggesting that the firing was done from several feet while other were suggesting that the muzzle of the gun was in much near range. (iv) The trial court noticed that the glutial entry wound is lower in level than the exit wound of navel (keeping their situation in the body in mind). If these levels are kept in mind the entry wound is from a lower level than the exit wound and so the shot must have path from below upward. Such a path of shot could not be possible if fired from an erect position by the assislant towards the victim. PW 15 autopsy surgeon had given this opinion in his evidence in court. (v) The trial court was pursuaded by the plea of the Defendants that in fact in the police report Ex.D-6 which Bhagwatdeen had lodged against the deceased, that very day earlier, it has been mentioned that the deceased and his son came to his house. The deceased was carrying a country made fire arm. The deceased entered the house of accused Bhagwatdeen, gappled with him, pulled him out of the street and they both fell. The deceased then asked his son to take the country made gun from him and shoot Bhagwatdeen-the accused/ Respondent. Then Ramashankar (PW 16) the son of deceased, was pulling the gun from the hands of deceased and in this process the gun got fired injuring the deceased himself of his buttock and that is how the incident occured. This defence was also taken by the accused Respondent Bhagwatdeen in a written statement which he filed after the prosecution evidence, under the provisions of Section 313 Cr.P.C, and also in cross examinstion of wife and sons of deceased. 9. This defence was also taken by the accused Respondent Bhagwatdeen in a written statement which he filed after the prosecution evidence, under the provisions of Section 313 Cr.P.C, and also in cross examinstion of wife and sons of deceased. 9. A perusal of the judgment of the trial court shows that it rejected the evidence of eye witnesses because of the alleged distance from which they say the shot was fired, considering the same on the test of circumstance that it must have been fired within 6 inches to 3 feet of the entry wound. According to the trial court the line of fire also suggested that it could have occurred while the deceased had fallen down. The statement of witnesses were also found to be interse discrepant and also showing improvements over case diary statements. So the benefit of doubt was given to accused/Respondent Bhagwatdeen and as regards the other accused, the evidence of alleged exhortation was not found to be satisfactory. Hence they were acquitted. The trial court did not find the evidence of dying declaration of deceassed. Ex. P-27 recorded by I.O. as reliable or dependable due to descrepancies and witnesses to it (PW 4 Keshav and PW 5 Bhatlal) going hostile to their projection as eye witnesses, although confirming that Rambaksh gave a statement to police, which was recorded at the scene of crime, about who had shot him. 10. The learned State counsel has taken us through the evidence on record and has argued that so many eye witnesses who were naturally present there and for whom it was natural to witness the incident cannot be discarded merely for discrepancy of distance or of angle of fire. The fact that there was previous enmity and decade long litigation between the parties shows motives also. The gun was recovered from the possession of the accused and from that gun this fire was possible. There is also a credible dying declaration Ex. P-27 of Rambaksh supported by I.O. and the two witnesses PW 4 and PW 5. The main argument is directed against the accused/Respondent No. 1 Bhagwatdeen. 11. It is unfortunate that in spite of number of counsel representing the accused/Respondents, none of them has cared to appear and argue on his behalf. However, we have considered the testimony of the witnesses and other material on record carefully. 12. The main argument is directed against the accused/Respondent No. 1 Bhagwatdeen. 11. It is unfortunate that in spite of number of counsel representing the accused/Respondents, none of them has cared to appear and argue on his behalf. However, we have considered the testimony of the witnesses and other material on record carefully. 12. We find that the assessment of evidence by the trial court suffers from serious infirmities and impermissible rejective inferences. Certain glaring facts have been ignored or misunderstood. Since it is appeal against acquittal it will be appropriate to discuss some striking features of he evidence on record. There is no dispute that Gaibi (PW 17) has his house in front of house of accused/ Respondent Bhagwatdeen. He has deposed about deceased Rambaksh coming there, following his wife and himself followed by his two sons. This witness was fixing his fencing 'Badi' at that time. That is a common activity in the village and the period on 20-10-98 at about 5-30 p.m. is early evening time, so nothing is unnatural about his presence there and his seeing these people coming towards house and the accused Bhagwatdeen standing at his house. He says that accused/Respondent Bhagwatdeen was sitting at his door along with Chukouna and the instigation of Chukouna, Bhagwatdeen fired at Rambaksh, who fell in the drain, adjacent to his fencing (Badi) and injured Rambaksh was shouting while Bhagwtdeen-the accused/Respondent entered his house. In the meantime, the wife Kailasia (PW 8) and two sons Mathura (PW 9) and Ramashankar (PW 16) of Rambaksh and others also sorrounded the injured Rambaksh. Basant (PW 1) went to lodge report with police. Then police, I.O. PW 18 reached there and injured Rambaksh gave his statement P-27 to police. PW 17 has asserted in cross examination that he himself was hardly 8 feet away from the accused persons while he was mending his 'badi'. He was confronted with the fact that in police statement he had asserted that Bhagwatdeen was sauntering (walking around). There was shown to be an improvement regarding instigation by Chukouna. 13. We do not find anything untrustworthy in the testimony of this witness and the fact whether the accused/Respondent Bhagwatdeen was moving or sitting at his door, is not material so long it amounts to saying that he was present at his door and fired from there. There was shown to be an improvement regarding instigation by Chukouna. 13. We do not find anything untrustworthy in the testimony of this witness and the fact whether the accused/Respondent Bhagwatdeen was moving or sitting at his door, is not material so long it amounts to saying that he was present at his door and fired from there. He has not been questioned regarding the fact that the deceased Rambaksh was following his wife Kailasia (PW 8) and was himself being followed by his two sons Mathura (PW 9) and Ramashanskar (PW 16), while moving in front of the house of accused. There Is not an Iota of cross-examination on these points, so this clearly suggests that the deceased Rambaksh, his wife Kailasia (PW 8) ans sons Mathura (PW 9) and Ramshankar (PW 16) were so passing there. Another aspect is that it is nowhere suggested to this witness that the deceased came on, entered the house of accused Bhagwatdeen and on grappling with him, pulled him out in the street, and this incident, occurred while the son of accused was taking his gun from him. All this defence story Is nowhere suggested even by indication in the cross examination of this witness. 14. With this discussion of an independant witness who was neighbour of the accused and who had no ill-feelings or enmity towards the accused and, therefore, has reliability, we proceed to consider the testimony of three other material witnesses namely Kailasia (PW 8), Mathura (PW 9) and Ramashankar (PW 16) i.e. the wife and sons of deceased Rambaksh. Their testimony is testimony of persons related to the deceased but a court of law and justice cannot lost sight of fact that their presence at the scene of crime was natural. It is mentioned in the F.I.R. also and it is established by independant evidence of Gaibi (PW 17) as noted above. Kailasia (PW 8) has supported the version that she and her husband and sons were moving in the street one behind the other. Gaibi (PW 17) was present in front of his house mending his fence. Accused Bhagwatdeen was standing on his door steps along with other accused persons. She heard the gun fire as she was about to turn the street and her husband shouted 'Douro Bhagwatdeen Ne Goli Maar Diya', and he fell down in the drain. Gaibi (PW 17) was present in front of his house mending his fence. Accused Bhagwatdeen was standing on his door steps along with other accused persons. She heard the gun fire as she was about to turn the street and her husband shouted 'Douro Bhagwatdeen Ne Goli Maar Diya', and he fell down in the drain. His sons Mathura (PW 9) and Ramashankar (PW 16) and witnesses Ramadhar and Gaibi were present there and Basantlal (PW 1) reached there immediately. According to her Bhagwatdeen had claimed in front of all persons boldly that he had shot the deceased. We are however ignoring this oral dying declaration or confession of accused being improvements in her testimony. 15. According to her the distance between the door of Bhagwatdeen and Badi of Gaibi is hardly 6 arm length i.e. 9 feet. Her testimony of what she saw has to be accepted as truthful. She admitted that dispute regarding land was continuing between her husband and accused/Respondent Bhagwatdeen for the last 15-16 years. To this witness was suggested the defence story (as already noticed) which the accused Bhagwatdeen has narrated in his defence. Of course, she has denied it. 16. We now look into the testimony of two sons namely Mathura (PW 9) and Ramashankar (PW 16). They had stated that on the instigation of Chunkouna the accused Bhagwatdeen had shot at their father Rambaksh. Gaibi (PW 17) was also present at the time of firing the gun. They support their mother's contention as also of Gaibi (PW 17) in cross-examination. PW 9 admitted that Bhagwatdeen had fired the shot in standing posture. It was suggested to him that he had attacked Bhagwatdeen several times with fists and blows. The defence story was confronted to him also which he denied. 17. Ramashankar (PW 16) has stated that the gun was fired by the accused Bhagwatdeen in a sitting posture. On other aspects he supports the others above mentioned witnesses. The defence story was denied by him also. The presence of these two sons of deceased is not disputed and their specific role of attacking Bhagwatdeen is suggested in cross-examination as well as defence version and even in evidence of DW 1. 18. Ramadhar (PW 8) Was present according to all these witnesses in front of his house, which is just few feet away in the same neighbourhood. The presence of these two sons of deceased is not disputed and their specific role of attacking Bhagwatdeen is suggested in cross-examination as well as defence version and even in evidence of DW 1. 18. Ramadhar (PW 8) Was present according to all these witnesses in front of his house, which is just few feet away in the same neighbourhood. He also asserts that Rambaksh following his wife were passing in front of the house of Bhagwatdeen, where the accused Bhagwatdeen was standing, armed with gun and Bhagwatdeen shot Rambaksh who fell down. In cross-examination he asserted that accused Bhagwatdeen fired the shot in a sitting posture and the shot struck deceased Rambaksh on his buttock. Of course, since this witness had not asserted presence of sons of deceased, he was cross examined by prosecution and he simply stated that he did not notice the sons of deceased although he had stated so in his narration to the police recorded Under Section 161 Cr.P.C. 19. Basantlal (PW1) asserted that he had lodged the F.I.R. on information given by these witnesses already mentioned above and he named the accused and those witnesses in the F.I.R. He had reached the spot on hearing the shouts of injured Rambaksh and he had seen the accused Bhagwatdeen having the gun in his hand. This, he asserted in the F.I.R. Ex.P-2 also. He claims that Bhagwatdeen accused is his uncle (saga chacha). 20. The trial court's reason proceeds even on the testimony of a defence witness Sunderlal (DW 1) who asserts that he saw Bhagwatdeen and Rambaksh, the deceased, grappling with each other in the drain. Ramadhar (PW 6) was present on the 'Chabutra' of his shop at that time. He asserted that witness Ramashankar (PW 16) was standing, handling a 'Katta' (country made gun). He did not see anybody firing the shot and he lives 100 meters away from the shop of Ramadhar (PW 6). According to him even Mathura (PW 9) was present there. This witness proves presence of PW 9 and PW 16 at the scene of crime. The story that Ramashankar was handling a Katta is false. 21. He did not see anybody firing the shot and he lives 100 meters away from the shop of Ramadhar (PW 6). According to him even Mathura (PW 9) was present there. This witness proves presence of PW 9 and PW 16 at the scene of crime. The story that Ramashankar was handling a Katta is false. 21. The view of the trial court that medically or in the ballistic sence the injuries on the person of deceased could not have been caused by a shot from fire arm by anybody from the door of Bhagwatdeen, is based on assumption without support from any medical opinion. There were two types of versions in the cross examination of witness regarding the direction of shot (in standing posture or sitting posture) and no evidence regarding the distance from which the shot was fired on the deceased. Sitting posture is narrated by Ramadhar (PW 6) as well as by Gaibi (PW 17). Other witnesses have not stated the posture of the shot but there is consistant evidence that this accused fired the shot. The evidence of Basantlal (PW 1) is equally corroborative in so far as he saw the accused having the gun in his hands, when he reached the scene of crime after the fire. One factor which the trial court appears to have, omitted from consideration is the opinion of medical experts that shot or pellets or bullet get deflected in the body and the path which they take for emerging is not necessarily in straight line with the point of entry. There is medical evidence of the autopsy surgeon that one thigh bone of the deceased in the buttock region had become fractured. This shows that pellets struck there and there was necessarily deflection. Modi in Medical Jurisprudence and Toxicology at page 271 (15 edition) has clearly given opinion regarding 'direction of fire', that in some cases it is difficult to determine the direction as the bullet is so often deflected by the tissues that its course is very irregular, also when the bullet wobbles. This will be true of pellets fired from a muzzle loading gun also. So the point of emerging of pellets in relation to point of entry will not lead to essential conclusion that the shot was fired from below upwards. This will be true of pellets fired from a muzzle loading gun also. So the point of emerging of pellets in relation to point of entry will not lead to essential conclusion that the shot was fired from below upwards. The conclusion of the learned trial court that it is doubtful if shot was fired by accused from door of his house, is without basis and without consideration of the aforesaid opinion of medical experts. 22. Turning to the question of burning of the skin at the point of entry of wound, the trial court has concluded that the fire must have been from within the range of 6 inches to 3 feet and this circumstance is contrary to the evidence of witnesses that the fire was made from the door of the accused. The trial court has inferred that if statements are true then the shot must have been fired from a distance of about 10-12 feet, which could not cause the effect of burning of skin around the wound. So testimony of witnesses was discarded. It was also thought that the burnt skin indicates possibility of defence story being correct. 23. On a close perusal of the statement of these witnesses, we find that the trial court has missed to note that no witness stated the distance of fire, that is muzzle of the gun from the victim. They have simply and generally stated the width of the lane from the house of accused. They have described it something between "Char-Hath" to "Chha Hath". One "Hath" is equal to 1 1/2 feet. The site plan Ex.P 29 shows that it is a narrow lane and the plan shows the distance between doors of the accused/Respondent No. 1 Bhagwatdeen to the spot where the injured had fallen as 1.5 feet. That spot of fallen injured cannot be the same as the spot where he was shot. 24. Keshavsingh (PW 4) who is a witness to the preparation of the plan asserted that this was prepared by the police at night and he signed as a witness. He did not claim to be eye witness to the firing but asserted that Rambaksh, in injured condition, was lying at the door of Bhagwatdeen. 24. Keshavsingh (PW 4) who is a witness to the preparation of the plan asserted that this was prepared by the police at night and he signed as a witness. He did not claim to be eye witness to the firing but asserted that Rambaksh, in injured condition, was lying at the door of Bhagwatdeen. So this gives an idea of how narrow is the lane and also that the spot of lying of the injured person was not necessarily the spot where he suffered the fired shot. 25. Narendra Pandey (PW 18) who prepared the site plan has also asserted that he prepared it on inspection of the spot, and the witnesses signed. Necessarily, it shows the point where the body was lying in relation to door of the accused/Respondent No. 1 Bhagwatdeen, and not the point of hit of the shot. 26. We do not find evidence of any eye witness that the spot was fired from a particular distance. Such question was not asked. There are consistent testimonies that the accused fired from the door of his house. According to Ramadhar (PW 6) the accused fell about 4-5 "Hath" ahead. It is also to be kept in mind that the muzzle loading gun has length more than two feet. It was a licensed gun. So that distance is also kept to be in mind. In this narrow land there was a nali along side the house of Ramdhan. In this nali, the victim Rambaksh fell. So it must have been about 2' wide. So in a lane about 8' to 9' wide, Rambaksh must have been moving in lane between Nali and house of accused Bhagwatdeen. So his walk was just few feet in front of house of accused. Distance from muzzle of gun to Rambaksh could be about 3' or less. So occular testimony can't be called contradictory to medical evidence. 27. According to the autopsy surgeon's report there was abrasion around the entry wound as also scorching and blackening and burning of skin around the entry wound. There were also noticed that three pellets marks and blackening of skin on the back of left arm of size 1/4" x 1/4". There was another pellet marks 21/2" below the entry wound on the left arm, size 1/4" x 1/4". These injuries indicate that the pellets had spread to some extent from the shot. There were also noticed that three pellets marks and blackening of skin on the back of left arm of size 1/4" x 1/4". There was another pellet marks 21/2" below the entry wound on the left arm, size 1/4" x 1/4". These injuries indicate that the pellets had spread to some extent from the shot. The core of the discharge had entered at one point and pellets on the sides including the lower portion of the left arm. So it was a powerful shot and the dispersal of the pellats was also powerful. Modi in his book i.e. Medical Jurisprudence and Toxicology of 21st edition edited by C.A. Franklin at page 272, has given a chart about the range of fire in cases where flame, burning scorching and singing or tattooing or smoke/powder marks are noticed around the wound. In case of shot gun when such evidence is noticed around the wound, the distance can be upto one metre and tatooing can be there from shot fired from 1 to 3 metres. 28. Thus, it is apparent that the distance between muzzle of the gun and the victim might have been about one meter. We do not find evidence of witnesses contrary to this. The trial court has been misted to assume that the witnesses are saying that the gun was fired from 8-10 feet. We do not find any contradiction in the testimony of these eye witnesses in comparision to medical evidence. 29. The trial court failed to properly appreciate these factors. The trial court has further failed to keep in mind those pronouncements of the Supreme Court which lay down that medical evidence does not always lead to discarding of the occular testimony of witnesses who saw the assailent shot actually, unless the medical evidence discloses totally contradictory circumstance which go to the root of the case of the prosecution. 30. The Supreme Court of India has dealt with inconsistency between direct evidence and medical expert evidence in number of cases. The principle which emerges is that when the direct evidence is satisfactory and reliable, it should be preferred to expert evidence, more so where the expert evidence shows two alternative possibilities, but not any inconsistency. Similar opinion was given by the Supreme Court in case A.I.R. 1983 SC 484 (Solanki Chanan Bhai Uka Bhai v. State of Gujrat). The principle which emerges is that when the direct evidence is satisfactory and reliable, it should be preferred to expert evidence, more so where the expert evidence shows two alternative possibilities, but not any inconsistency. Similar opinion was given by the Supreme Court in case A.I.R. 1983 SC 484 (Solanki Chanan Bhai Uka Bhai v. State of Gujrat). It was observed that testimony of eye witness should be preferable to medical evidence unless the medical evidence completely rules out the eye witness version. In a more recent case cited at (1996) 2 SCC 264; (Godabarish Mishra V. Kuntala Mishra), commenting about opinions of Modi and Taylor in their treatises on medical jurisprudence, the Supreme Court observed - That apart, the opinions expressed in the said treatises are, at best, opinions of expert which though deserve full consideration with respect, cannot be held absolutely conclusive particularly, when other evidences clearly established give a contra indication. 31. Again in (1997) 9 SCC 754 (Prem V. Daola and others), the Supreme Court, while considering conflict between medical evidence vis-a-vis direct evidence held that in the facts and circumstances of that case, the opinions of the doctor cannot nullify the evidence of the eye witnesses. In that case, the doctor's opinion was that the depth of injury was more than the length of 'Ranpi' the weapon allegedly used for causing injury. On that basis the doctor opined that the injury in question could not be caused by such 'Ranpi'. However, evidence of eye witnesses was that the injury in question was caused by Ranpi. That evidence was found unimpeachable. It was held that eye witnesses account was preferable and could not be negatived by the medical opinion. Still other case in point is Ramdo and Anr. v. State of M.P. cited at [1995 Suppl. (1) SCC 547]. In that case eye witnesses had spoken of one shot fired at the deceased by the accused but the deceased was found to be having three gun shot injuries. The High Court observed that the three injuries could be result of dispersed pellets from one shot striking the deceased at three points. So the medical evidence was not found to be inconsistent with the oral testimony. The Supreme Court while accepting this view of the High Court observed - It is well settled that medical evidence is only opinion evidence. So the medical evidence was not found to be inconsistent with the oral testimony. The Supreme Court while accepting this view of the High Court observed - It is well settled that medical evidence is only opinion evidence. It is hardly decisive and is often inconclusive. Since the oral testimony of P.W.1 Ram Saran and PW2 Ram Bharose suffer from no infirmity whatsoever, the vague opinion given by doctor cannot in any way affect the value of oral testimony and cannot affect the credibility of the prosecution case at all. 32. It the variation between medical opinion and occular testimony is explainable on some reasonable hypothesis, the occular testimony cannot be ignored. It is entirely different to say that 'A' gave a Gadasa blow on the victim's neck and there is found no incised wound on any part of the body, than narrating the distance between the victim and the assailant. The distance can at best be narrated by estimation of the witness. There is no doubt that in the present case, it was a close range fire in order to kill the victim. Occular testimony of eye witness has been wrongly discarded in this case. This has led to grave injustice to the prosecution. 33. The trial court has ignored the fact that when a shot strikes buttock region and cause fracture to the bone, it is bound to get dedeflected in its path. The wound of emergence will not be in straight line with wound of entry. So the line of two wounds is not the line of fire. The shot could hit the buttock region from whatever posture it was fired and it could emerge in the stomach area 2 inches below umblicus as happened in this case, due to the deflection. 34. When we consider the prosecution evidence from this view, it appears crystal clear that the manner in which the learned trial court has treated the evidence on this point, was thoroughly erroneous. The position set up by this accused in defence is imaginary and we reject it. 35. Deceased's dying declaration recorded by PW 18 investigating officer as P-27 is also acceptable. PW 5 Bhailal and PW 4 Keshav have signed it. PW 4 supports it inspite of denying to be eye witness to shooting. PW 5 also asserts that deceased named the accused Bhagwatdeen to police as shooter. 35. Deceased's dying declaration recorded by PW 18 investigating officer as P-27 is also acceptable. PW 5 Bhailal and PW 4 Keshav have signed it. PW 4 supports it inspite of denying to be eye witness to shooting. PW 5 also asserts that deceased named the accused Bhagwatdeen to police as shooter. He is a witness hostile to prosecution. There is no reason to disbelieve the I.O. that the deceased gave this statement. 36. The following features are very striking in this case- (i) it is amply proved that all the witnesses claiming to be eye witnesses, were present at the scene of crime. Their presence was natural. (ii) Whatever they stated was their first version and had been corroborated even in the F.I.R. through the narration of Basantlal (PW 1). So it is corroborated by F.I.R. (iii) At least Ramadhar (PW 6) who is partly hostile Gaibi and Basantlal (PW 17) are independent witnesses having no enmity with the accused/Respondent No. 1 Bhagwatdeen. There is no reason to discard their testimony. (iv) The evidence of Kailasia (PW 8), Mathura (PW 9) and Ramshankar (PW 16) is believable, their presence being natural. The evidence of these eye witnesses is corroborated by the medical evidence that there were gun shot wound on the body of deceased and the medical evidence is in no way contradictory to the occular testimony. (v) The version in the F.I.R. was natural. It was not delayed. One can imagine how much confusion arises when such an incident takes place and the victim falls injured in a drain in the street. 37. Considering these features of the case we find that it is amply established that the accused-Respondent No. 1 Bhagwatdeen fired the shot at the deceased. Of course, he had his own motive due to previous litigation between them. The deceased died in the same night. His intestines had been damaged due to gun shot. So death was the natural result of the incident. So far as Bhagwatdeen is concerned, his act amounts of murder within the definition of Section 300 I.P.C. punishable Under Section 302 I.P.C. He is therefore convicted for the same. 38. As regards the other Respondents, the allegations are that they instigated this accused Bhagwatdeen to fire. So death was the natural result of the incident. So far as Bhagwatdeen is concerned, his act amounts of murder within the definition of Section 300 I.P.C. punishable Under Section 302 I.P.C. He is therefore convicted for the same. 38. As regards the other Respondents, the allegations are that they instigated this accused Bhagwatdeen to fire. That part of the narration of witnesses has some improvements and even otherwise it is difficult to accept that five other persons instigated one assailant to fire a shot. Only one shot had been fired and it was an abrupt act when the deceased was passing in front of the house of Bhagwatdeen. In any case the benefit of doubt must go to the accused other than Bhagwatdeen. So we find that others than Bhagwatdeen have been rightly accuitted of the charges. 39. Resultingly this appeal partly succeeds and is allowed as against Bhagwatdeen-Respondent No. 1 but fails against other Respondents accused and is dismissed against them. Accused Bhagwatdeen is convicted and Under Section 302 IPC and sentenced to the minimum permissible sentence i.e. imprisonment for life and fine of Rs. 1000/- failing which he shall suffer further imprisonment for six months. Accused Bhagwatdeen shall surrender to his bonds to undergo the sentence. The trial court shall see to it that he is arrested and is sent to jail.