Judgment R.N.Sahay, J. 1. By judgment and order dated 21.3.1986 the 1st Additional Sessions Judge, Aurangabad in Sessions Trial No. 103 of 1979/74 of 1983, convicted appellant No. 1 Ram Ishawar Singh under Section 302, Indian Penal Code and sentenced to imprisonment for life. Appellant No. 2 Biran Singh has been convicted under Section 323, Indian Penal Code and sentenced to RI for six months. 2. The facts leading to trial and conviction of the appellants may be stated as follows. On 13.7.1979 at about noon time, Jageshwar Singh (PW 3) was sitting at his darwaja in village Gumhari, P.S. Goh in the district of Aurangabad. His son Baliram Singh (PW 1) came and informed Jageshwar Singh that appellant No. 1 was demolishing the wall of his southern Khand with spade and he was also saying that part of that land belonged to him. The appellants are agnates of Jageshwar Singh. There was dispute over part of the Khand. On hearing this, Jairam Singh, Saliram Singh and their father Jageshwar Singh went to the Khand and raised voice against high-handedness of the appellants. Ram Ishwar Singh and his uncle Biran Singh started abusing them. Biran Singh is alleged to have assaulted the informant with lathi. Ram Ishwar Singh (appellant No. 1) fired from his revolver on the chest of Jairam Singh. Jairam Singh died on the spot. Apart from Baliram Singh and Jageshwar Singh, Bishram Sharma, Bageshwar Sharma and Ram Naresh Sharma had also seen the occurrence. On the same day at 3.45 p.m. Jageshwar Singh lodged a report with the officer-in-charge of Goh Police Station and a case under Section 302/323, IPC and 27, Arms Act was registered. In due course, the appellants were placed on trial. 3. According to the defence, no occurrence as alleged by the prosecution took place and they have been falsely implicated due to previous enmity. According to the defence, the occurrence had taken place in a different manner and that the appellant Siram Singh also received serious injuries which has been suppressed by the prosecution. As stated earlier, there is direct evidence against the appellants and the occurrence had taken place in day time, the trial judge therefore had no difficulty in recording a finding of conviction against the appellants. 4. Mr. As stated earlier, there is direct evidence against the appellants and the occurrence had taken place in day time, the trial judge therefore had no difficulty in recording a finding of conviction against the appellants. 4. Mr. Rana Pratap Singh, learned Senior Counsel for the appellants has pointed out with reference to the evidence that the occurrence had not taken place at the place as alleged by the prosecution witnesses. Learned Counsel submitted that Baliram Singh (PW 1) in his evidence has said that while he was going to graze his bullocks towards the pond, he had seen the appellants demolishing the boundary wall of the Khand. This witness in para- 3 of his deposition has stated that the Khand was not situated on the road between his house and the said pond. It was submitted that the evidence of Baliram Singh that having seen the appellant demolishing the wall had gone to inform his father cannot be accepted. This witness denied to have stated before the Investigating Officer that Tribeni Singh, father of appellant No. 1, had asked to call his father Baliram Singh denied to have stated before the Investigating Officer that Tribeni Singh, father of appellant No. 1, had asked his father as to why he had put fresh earth on the dividing wall of the Khand. He has also denied to have stated before the Investigating Officer that Tribeni Singh had asked the informant that he would not allow to put earth on the said wall as the wall belonged to him (Tribeni) This is contradicted by the Investigating Officer, who said that this fact was said by Baliram Singh. According to the evidence of Baliram Singh, the deceased had sustained gunshot injury from the distance of 10-15 cubits. 5. Bishvam Sharma (PW 2) the brother of the deceased had also seen his brother being shot by appellant No. 1. According to this witness, there was a Moonga Tree north-west of the Khand of the informant. He has stated that there was no straw kept near the Moonga Tree or around the same. Learned Counsel for the appellants has submitted that according to the Investigating Officer, the dead body of the deceased was recovered from the north-west of the Khand of the informant. He had seized the blood-stained earth and some straw with blood from near the dead body of the deceased. Learned Counsel for the appellants has submitted that according to the Investigating Officer, the dead body of the deceased was recovered from the north-west of the Khand of the informant. He had seized the blood-stained earth and some straw with blood from near the dead body of the deceased. This witness has also stated that the appellant No. 1 and fired at the deceased from near the wall in question which was being demolished. This witness admitted that there was dispute between the family of the deceased and the family of the informant appellants with respect to the walls of Khand. He denied to have said before the Investigating Officer that there was some altercation between Tribeni Singh, father of appellant No. 1 and the informant with respect to putting fresh earth on the dividing wall. He farther denied having said before the Investigating Officer that on the order of Tribeni Singh the informant was assaulted. According to the Investigating Officer, all these facts had been said by Bishram Sharma. 6. These facts show that the manner of occurrence was other v/ise than what has been stated by the witnesses. Tribeni Singh no where figures in the evidence oi the witnesses. Admittedly, there was dispute between the two families and a proceeding under Section 107, Cr PC was pending between the family of the deceased and Tribeni Singh. Bageshwar Singh (PW 4) has also denied to have stated before the Investigating Officer that there was altercation between Tribeni Singh and Jageshwar Singh with respect to putting fresh earth on the wall. He has denied that the assault took place on the orders of Tribeni Singh. He has been contradicted by the Investigating Officer. 7. The evidence of Madho Singh (PW 5) is very important. He has stated that the dead body of the deceased was lying in the Khand of Shyam Sharan Singh which is away from the disputed Khand. This witness had seen injuries on the eye of appellant No. 2 Biram Singh. Learned Counsel for the appellant submitted that on the face of glaring infirmities, the trial judge went wrong in convicting the appellants. All these witnesses were unreliable. No witness has spoken about the role of Tribeni Singh. Learned Counsel further submitted that no independent witness of the mohalla was examined. The evidence of the witness is wholly unreliable and they are closely related to the deceased. All these witnesses were unreliable. No witness has spoken about the role of Tribeni Singh. Learned Counsel further submitted that no independent witness of the mohalla was examined. The evidence of the witness is wholly unreliable and they are closely related to the deceased. 8. Triveni Singh, father of the appellant No. 1 Ram Ishwar Singh no where figures in the evidence but it is clear from the evidence of Baliram Singh, who had stated when examined by the Investigating Officer, that Triveni Singh asked him to call his father. Triveni Singh asked Jageshwar Singh as to why he had put fresh earth on the divided wall. He also stated before the Investigating officer that Triveni Singh was heard saying that he would not allow to put fresh earth on the wall because the wall belonged to him. Bishram Singh, brother of the deceased had stated before the Investigating Officer that on the order of Triveni Singh, the informant was assaulted. Thus, the prosecution has tried to suppress the real genesis of the occurrence by keeping aside Triveni Singh, who was not even made an accused. There was altercation between Triveni Singh and.Jageshwar Singh on account of putting fresh earth on the wall. 9. According to the defence, Biran Singh (Appellant No. 2) had sustained several injuries. Dr. Lallu Prasad Jayaswal, DW 1 had deposed that on 13.7.1979, he was posted as Civil Assistant Surgeon in Sadar Hospital, Aurangabad. He had examined the Appellant No. 2 Biran Singh and found following injuries: (i) Incised wound 2-1/2" x 1/4" x 1 /4" on the left front of parietal region of scalp. (ii) one incised wound 2" x 1/2" x 1/4" on the left parietal region of scalp. (iii) One bruise 5" x 1" on right side of the back. (iv) One bruise 4" x 1" on the left side of the back. The doctor opined that injury Nos. (i) and (ii) were caused by sharpcutting weapon such as Garasa and the rest of the injuries by hard and blunt substance such as lathi. There is absolutely no explanation for the injuries on the person of Biran Singh. The Prosecution has totally suppressed the fact that Biran Singh had received injuries in the same occurrence. (i) and (ii) were caused by sharpcutting weapon such as Garasa and the rest of the injuries by hard and blunt substance such as lathi. There is absolutely no explanation for the injuries on the person of Biran Singh. The Prosecution has totally suppressed the fact that Biran Singh had received injuries in the same occurrence. 10 On consideration of the entire evidence, I have no option but to hold that although the deceased died of firearm injuries and there is direct evidence on the assault, but the genesis of the occurrence itself is doubtful and the entire complexion of the evidence has been changed during trial by excluding the participation of Triveni Singh, father of appellant No. 1 and non-explanation of the injuries on Biran Singh appellant No. 2 renders this case against the appellants wholly doubtful. The appellants are entitled to benefit of doubt. 11. In the result, this appeal succeeds. The conviction of the appellants and sentence passed is set aside and the appellants are acquitted of the charges giving them benefit of reasonable doubt. Both the appellants are discharged from the liability of their bail bonds. P.K.Sarkar, J. 12 I agree.