JUDGMENT 1. - This appeal has been filed by the appellant against the judgment dated 30.6.84 of the learned Additional Sessions Judge, Kishangarh Bas whereby he has been convicted of the offence under Section 307 i.RC. and sentenced to R.l. for a period of one year and a fine of Rs.500/- in default to further undergo R.l. for a period of 3 months. 2. The prosecution story is that a first information report was lodged by the complainant Chunni Lal on 4.2.83 at 10.00 A.M. at RS. Kotkasim with the allegations that in the morning on that day, accused Deshraj, Amilal and appellant Jagdish fired on his nephew as well as on him. Suraj and Raja Ram were present there. According to him, the accused were armed with lathies and farsi. Some parts of an engine were stolen in connection with which appellant Jagdish was called by Sher Singh Yadav at the Police Station but he was allowed to go to his home in the evening. It was because of this that appellant Jagdish armed with a gun and accused Deshraj with farsi and Amilal with lathi came to kill him in the next morning and it was at that time that Jagdish resorted to firing. 3. On the basis of this written report, a case was registered and after necessary investigation, challan was filed against the accused which was committed for trial. The trial court framed charge under Section 307 I.RC. and Section 27 of Arms Act against accused appellant Jagdish and for offence under Section 307/34 I.RC. against Deshraj and Amilal to which they pleaded not guilty and claimed to be tried. The prosecution examined 11 witnesses in support of its case. In their examination under Section 313 Cr.RC., the accused persons denied the prosecution story and alleged that this false case has been foisted against them because of their demand for partition of petrol pump of Chunni Lal. However, they did not produce any evidence in defence. 4. After hearing both the sides, the learned Trial court, vide its impugned judgment acquitted accused Deshraj and Amilal of the charge under Section 307/34 I.RC. and also acquitted the appellant Jagdish under section 27 of Arms Act but convicted the accused appellant under Section 307 I.RC. and sentenced him as indicated above. Hence, this appeal has been preferred by him. 5. and also acquitted the appellant Jagdish under section 27 of Arms Act but convicted the accused appellant under Section 307 I.RC. and sentenced him as indicated above. Hence, this appeal has been preferred by him. 5. I have heard the learned counsel for the appellant and learned PR on behalf of the state and have also perused and considered the entire material on record. 6. It may be stated at the outset that the prosecution story as has been unfolded from the evidence on record does not inspire any confidence. Chunni Lal RW. 1 is the complainant himself. He has stated that the occurrence took place at 7/8 A.M. on 4.2.83 when he was in his Nohra. Raja Ram, Suraj Mai, Kishori Lal and Sultan were there. He had sent his nephew Rudhmal to fetch tea from the house. After about 2-3 minutes of Rudhmal leaving that place, there was a noise of gun shot. Rudhmal rushed back to the Nohra after 4-5 minutes and told him that when he was going near the house of Deshraj and Jagdish, Jagdish fired at him and Deshraj told him to kill him. So, he had rushed back. According to him, another gunshot was also fired at him from behind. At this, they started their jeep to go to the Police Station to report the matter. The accused persons came their running and they gave out that the complainant should not be allowed to go but the driver drove the jeep fast and turned it in another way. Accused appellant Jagdish again fired at them. He has also stated that some parts of their engine had been stolen and on his report in this regard, the police had called Jagdish to the Police Station for interrogation and due to this enmity, he fired at them to kill them. At that time, Deshraj had a farsi and Amilal had a lathi. Surajmal RW.2, Kishoriial RW. 3, Rudhmal Rw.5, Sultan RW. 8 and Raja Ram RW. 9 have also given the statements to the same effect but as per the F.I.R. Ex.P/1 the occurrence is said to have taken place at the house and in the F.I.R., the name of his nephew is not mentioned. 7. It is also a fact that Kishore is the brother of the complainant and is thus, an interested witness. Sultan RW. 7. It is also a fact that Kishore is the brother of the complainant and is thus, an interested witness. Sultan RW. 8 has stated that he has not gone to the police station along with Chunni Lal whereas Surajmal states that he has also accompanied them to the police station. Sultan RW. 8 is a resident of Kasola which is situated in Haryana. The name of Rudhmal RW. 5 is not mentioned in the F.I.R. Ex.P/1. There is no injury to any person. The site inspection note Ex.P/3 does not show any bullet mark on any wall adjoining the place of occurrence which renders it highly doubtful that any attempt was made on the lilfe of Rudhmai or any body else. Leaving Rudhmal alone behind even when the accused persons are alleged to have been following them with gun. farsi and lathi and not taking him along-with them in the jeep is also highly improbable and indicates that the story is concocted and fabricated. Otherwise, it is not normal human behaviour that the complainant and all persons would go to the police station leaving behind a young lad of 20 years and without making any arrangement for his safety. This apart, the story that Rudhmal after being fired at by Jagdish brought tea is highly improbable and unbelievable. Any one who has been fired at would loose his wits and would not be in a position to bring tea. Besides this, as per the prosecution story, he returned within 4-5 minutes of his going from there. It is well nigh impossible to reach the house of the complainant which was admittedly at a distance of about 150 yards from his Nohra and to get the tea prepared for 4-5 persons and then to reach back with the tea within the stated time. Chunni Lal RW.1, Kishori Lal RW. 3 and Rudhmal RW. 5 have not stated in their court statement that Rudhmal brought tea. Sultan RW. 8 states that Rudhmal came weaping after they heard the gun shot noise. He also does not say that he had come with tea. Only Rajaram RW. 9 and Surajmal RW. 2 have stated that Rudhmal came with tea. The statement of Rajaram RW. 9 is contradictory with his police statement because it omits the most important fact of Rudhmal having been sent by Chunni Lal for fetching tea. He also does not say that he had come with tea. Only Rajaram RW. 9 and Surajmal RW. 2 have stated that Rudhmal came with tea. The statement of Rajaram RW. 9 is contradictory with his police statement because it omits the most important fact of Rudhmal having been sent by Chunni Lal for fetching tea. He has also not shown Sultan sitting with them in the Nohra in his police statement Ex.D/5. According to him, Sultan had accompanied them in the jeep to Kotkasim but he has not gone to the Police Station and got down at the bus stand of Kotkasim. He also states that he himself had also not gone to the police station whereas the S.H.O. Dana Ram PW.11, who investigated the case, has stated that Rajaram and Kishanlal had also come with Chunni Lal at the police station. Dana Ram RW.11 has not stated that he had called accused Jagdish in connection with interrogation of the case pertaining to the engine parts lodged by the complainant. The prosecution has also not produced any document to support this fact and in the absence of such material on record, it cannot be said to be established that Chunni Lal lodged a report against Jagdish about the theft of the engine parts and as a result of this enmity, he fired at Rudhmal. Even if it is accepted for the sake of arguments that this was true, it does not stand to reason that the accused would fire at Rudhmal who had nothing to do with the report regarding theft of the engine parts. Rudhmal had not made any report against him about the said theft. There was no other ostensible reason for which the accused should cherish ill-will or malice against him. He is admittedly resident of a Village Raikhoda situated at 12-13 kms. from the village of the complainant. 8. Similarly, there are other material contradictions and discrepancies in the statements of Surajmal RW.2, Kishoriial PW.3, Sultan RW. 8 and Rajaram RW.9 and their police statements and on a careful perusal of these statements which render their testimony incredible and the story appears to be totally cooked up or fabricated. 9. from the village of the complainant. 8. Similarly, there are other material contradictions and discrepancies in the statements of Surajmal RW.2, Kishoriial PW.3, Sultan RW. 8 and Rajaram RW.9 and their police statements and on a careful perusal of these statements which render their testimony incredible and the story appears to be totally cooked up or fabricated. 9. No doubt, there is an evidence of recovery of a 12 bore single barrel gun (Article Ex.2) from Hari Singh, who is father of the Jagdish, vide Ex.P/5 which has been proved by Danaram P.W. 11 and this has also been recovered in the presence of Surajmal RW.2. It. has also been proved by Sube Singh that the pocket containing this gun was taken to the F.S.L., Jaipur by him in a sealed condition and was handed over there. The head mohrir of the police station has not been produced and, therefore, the link evidence to show that this was kept intact in a sealed condition in the police station has not been proved. Be that as it may. The most important circumstance that renders this gun of little significance is the fact that in Ex.P/5, seizure memo, it is mentioned that the barrel of this gun was rusted both from inside and outside. Coupled with this, only one cartridge case has been recovered and that too has been produced by Rudhmal and it has not been found at the place of occurrence and 2 other cartridge cases alleged to have been fired by this gun have not been recovered. It appears from the statement of Chunni Lal P.W. 4 that the gun was fired twice at Rudhmal but even if it is taken to be fired once at Rudhmal admittedly, it was fired at Chunni lal and others when they were going on in the jeep. So two cartridge cases could have been recovered but only one has been seized on production by Rudhmal. 10. As per the report of F.S.L. Ex.P/7, the 12 bore cartridge case C1 from packet B has been fired from 12 bore gun W/1 from packet B and it has been opined that the same had been fired some time before it was received in the laboratory. The opinion has been given on 8.12.83 whereas the packet was deposited on 4.2.83. i.e. after over 10 months. The opinion has been given on 8.12.83 whereas the packet was deposited on 4.2.83. i.e. after over 10 months. It is not indicated in the report as to when the examination was conducted and if the examination was conducted after 10 months of firing, how it was assessed that it was fired some time before the packets were deposited with the F.S.L. This apart, the cartridge case recovered from packet A marked C1 was sent in packet A whereas the report indicates that it was in packet B. This discrepancy also renders the report of F.S.L. nugatory and of little avail to the prosecution and it also reflects that the examination has been made in a most perfunctory manner. It cannot be used for connecting the gun with the recovered cartridge and, therefore, this circumstance is also of little avail to the prosecution. 11. In view of the foregoing discussion, I am clearly of the opinion that the prosecution has miserably failed to bring home the guilt of the appellant beyond all reasonable doubts and he is entitled to be acquitted of the charge under Section 307 I.RC. 12. In the result the appeal is allowed the judgment dated 30.6.84 of the learned Additional Sessions Judge, Kishangarh Bas is set aside and the appellant Jagdish is acquitted of the change under Section 307 I.RC. He is on bail. The bail bonds are discharged. He need not surrender to his bail bonds.Appeal allowed. *******