JUDGMENT 1. - The accused-appellant-Lal Chand and other co-accused-Om Prakash Premchand, Nandlal and Harish Kumar were indicted before the Additional Sessions Judge No. 3, Kota in Sessions Case No. 176/92 for having committed murder of Ramlal. Learned trial Judge did not find co-accused-Om Prakash, Premchand, Nandlal and Harish Kumar guilty and acquitted them. The appellant-Lal Chand was however found guilty u/s. 302 IPC and sentenced to undergo imprisonment for life vide judgment dated 27.2.1997. Against this judgment of conviction that the present action of filing the appeal has been resorted to by the appellant-Lal Chand. 2. The prosecution story is woven like this, Devilal (PW-2) on 7.6.1991 submitted a written report with the police station Suket at around 9.30 a.m. with'the averments that their agriculture land was situated near the land of Lal Chand. Initially Lal Chand used to carry his bullock cart through the land of one Kesarilal but when Kesarilal refused to alldw his bullock-cart, Lal Chand started carrying bullock cart from their land. On being protested by the informant, Lal Chand threatened to kill him. On the date of the incident when Lal Chand as usual was taking his cart through their land, he was obstructed by the complainant party. Thereupon Lal Chand and his sons Prem and Harish Kumar rushed towards them. Lalchand inflicted lathi blow on the back of the informant Devilal who in turn snatched lathi and inflicted lathi blow on the person of Lalchand, who fell down. Lalchand then asked his son Harish Kumar to bring 12 bore gun. Harish Kumar brought the gun and gave it to Lal Chand who opened fire, which hit on the right eyebrow of Ramlal (now deceased). At that time Bhanwarlal, Nand Kishore, Chhotu, Hari Shankar and Nandlal were present. Police Station Suket registered an FIR No. 97/1991 u/s. 302 r/w Section 34 IPC and investigation commenced. Autopsy on the dead body of the deceased was conducted. Site-plan was drawn. Inquest report was prepared. Accused were arrested and on the basis of disclosure statement of Lalchand, gun was recovered and sent for ballistic examination. Statements of the witnesses u/s. 161 Cr.P.C. were recorded. On completion of investigation charge-sheet was filed. In due course the case came up for trial before learned Addl. Sessions Judge No. 3, Kota. Charges u/ss. 302, 148, 323, 447, 302/149, 147, 323/149 & 34 IPC were framed against the accused persons. Statements of the witnesses u/s. 161 Cr.P.C. were recorded. On completion of investigation charge-sheet was filed. In due course the case came up for trial before learned Addl. Sessions Judge No. 3, Kota. Charges u/ss. 302, 148, 323, 447, 302/149, 147, 323/149 & 34 IPC were framed against the accused persons. The accused denied the charges and claimed to be tried. The prosecution examined as many as 12 witnesses in support of its case and exhibited 21 documents. In the explanation u/s. 313 Cr.P.C. the accused claimed innocence and stated that they were falsely implicated on account of malice as their land was encroached upon by the complainant party. However, no evidence in defence was produced by the accused. On hearing the final submissions the learned trial Judge convicted and sentenced the accused-appellant-Lalchand as indicated hereinabove. 3. Mr. Biri Singh Sinsinwar, learned counsel appearing for the accused- appellant pointed out following infirmities in the prosecution case: (i) Informant Devilal, the author of FIR disowned the FIR and stated that it was not lodged by him. (ii) The genesis of the occurrence has been withheld by the prosecution. The gun was allegedly fired at a distance of about 14 steps that could not cause blackening but slight blackening was found over the wound received by the deceased. (iii) The injuries sustained by the accused-appellant were not explained by the prosecution. (iv) Report of ballistic examination of the gun was suppressed by the prosecution and no plausible explanation was given. (v) It is established from the material on record that competent Court issued stay order in favour of the accused-appellant in regard to the land in dispute and the complainant party was aggressor, and (vi) The prosecution has failed to prove the charges against the accused-appellant beyond the reasonable doubts. 4. Per-contra Mr. Madhav Mitra, learned Public Prosecutor supported the impugned conviction and canvassed that on account of minor infirmities the appellant was not entitled to benefit of doubt. Mr. Madhav Mitra contended that there was no reason to disbelieve the testimony of the eye-witnesses. According to Mr. Madhav Mitra learned Public Prosecutor slight blackening could be caused even if the gun got fired at a distance of 14 steps. 5. In order to appreciate the rival submissions we first proceed to scan the post-mortem report and injury report of the accused-appellant. According to Mr. Madhav Mitra learned Public Prosecutor slight blackening could be caused even if the gun got fired at a distance of 14 steps. 5. In order to appreciate the rival submissions we first proceed to scan the post-mortem report and injury report of the accused-appellant. The deceased- Ramlal sustained following ante-mortem injuries vide post-mortem report Ex.P/10 : "(i) Fire arm wound - wound of entry through right eye making a wound of 4 x 1 1/2 cm x tissue deep, entered by breaking the right lateral margin of nose is present. Very slight blackening is present over the right margin of nose. The margin of wound is slightly irregular. There is linear fracture of nasal, maxille, frontal bone and front of ..... portion) of base of skull. HEAD AND NECK (i) Fracture of nasal maxilla frontal bone and base of skull anterior posterior. Congested, laceration present on right frontal pole membranes. Right frontal lobe is lacerated congested. Fractured in anterior and right portion. The cause of death was injury to brain matter with excessive haemorrhage due to firearm. The injuries sustained by the appellant vide Ex.P/11 were as under: (i) Lacerated wound 7 x 3/4 cm x bone deep posterior portion of right parietal. (ii) Lacerated wound 4 x 1/2 cm x bone deep on right parietal occipital region about 2 cm from central line. (iii) Lacerated wound 1 3/4 x 1/2 x 1/4 cm about 1 cm above .... to left ear on right scalp. (iv) Lacerated wound 1 1/2 x 1 x 1/2 cm, M Lateral margin of right palm between thumb and index finger. (v) Bruise 7 x 2 1/2 cm antero lateral aspect of left deltord. (vi) Bruise with swelling 1/4 x 1/4 cm about 1 cm below the lathal margin of left eye. 6. It will be appropriate now to consider the testimony of the eye-witnesses examined by the prosecution. Mr. Bhanwarlal, PW-1 in his deposition stated that around 8.00 a.m. he was on his field alongwith his son Nand Kishore. There was altercation between Rama and Amra. Harish then came over with a gun and gave it to Lalchand and Lalchand opened fire that hit Rama who fell down and died at the spot. Mr. Bhanwarlal, PW-1 in his deposition stated that around 8.00 a.m. he was on his field alongwith his son Nand Kishore. There was altercation between Rama and Amra. Harish then came over with a gun and gave it to Lalchand and Lalchand opened fire that hit Rama who fell down and died at the spot. In his cross-examination he however, stated that he heard the noise of the gun which came from the western side from his field and when he had gone to the field of Rama he found Rama lying down near the well. As to how Rama received injuries, he could not say. He did not know as to whether Rama and his son gave beating to him. He did not see any blood over the head of Lalchand. From a bare perusal of the statement of this witness it appears that his relations with appellant-Lalchand were not good and a police case was registered by Lalchand against him. 7. Devilal PW-2 in his examination-in-chief stated that the report Ex.P/1 was got written by SHO. In his cross-examination he was asked as to whether report Ex.P/1 was written by Shaukat Ali. He gave the reply that he did not know as to whether the report was got written by Shaukat Ali. Thereafter,he was asked as to whether he had any discussions with Shaukat Ali before writing the report. The answer of Devilal was that he did not narrate anything about the occurrence to Shaukat Ali. He however, admitted that Shaukat Ali got his signatures on Ex.P/1 but he did not see Shaukat Ali at the police station. He denied to have inflicted lathi blows on the head of Lalchand. He did not explain injuires sustained by Lalchand and stated that he did not know as to whether Lalchand sustained injuries on his head. He did not see any blood over the head of Lalchand. 8. Chhotulal PW-3 in his examination-in-chief deposed that he had seen Lalchand inflicting injuires on the right eye of Ramlal with gun but in his cross-examination he stated that only after hearing noise of the gun he had gone to the field of Ramlal and he found Ramlal lying on the field. He further stated that he alongwith Hari Shankar reached at the spot after sometime but Bhanwarlal was present there when they reached. He further stated that he alongwith Hari Shankar reached at the spot after sometime but Bhanwarlal was present there when they reached. He also stated that he did not see any quarrel or `marpit' between the accused and the complainant party. He did not see the injuries received by Lalchand on his head. He further explained that after hearing the noise of the gun he had reached at the spot. 9. Nandlal PW-4 stated in his examination-in-chief that he had seen Lalchand inflicted injuries on Rama Gurjar with the gun. In his statement u/s. 161 Cr.P.C. he had stated that on hearing the noise of gun when he reached at the field of Ramlal he had seen Ramlal falling on the ground. He disowned his police statement (Ex.D/2) and explained that he did not know as to whether this statement was given by him to the police or not. 10. Amarlal PW-5, the son of the deceased, stated that Lalchand opened fire that hit on the right eye of his father Ramlal. He however admitted that the accused-appellant instituted a suit against them and the Court granted stay order in his favour against which appeal was filed by them. He stated that neither he nor his brother inflicted any injury with the lathi on Lal Chand and the did not see any injury on his body. 11. Dr. Rajesh Jain PW-6 who conducted autopsy on the dead body of Ramlal could not explain as to at what distance the injuries sustained by the deceased could be caused. According to Dr. Jain no bullet was found from the body of the deceased although there was no exist wound on the dead body. Hari Shankar PW-7, nephew of the deceased, stated that he had seen Lalchand opened fire with the gun as a result of which Ramlal had fallen down. He also stated that he did not see wounds or blood on the head of Lalchand. 12. Ramesh Lal, PW-9 was the Investigating Officer could not explain as to,why the report of ballistic expert was not produced. 13. He also stated that he did not see wounds or blood on the head of Lalchand. 12. Ramesh Lal, PW-9 was the Investigating Officer could not explain as to,why the report of ballistic expert was not produced. 13. Fact situation emerges from the material on record may be summarised as under : (i) The gun allegedly recovered at the instance of the accused-appellant although was sent for examination to the ballistic expert but expert's report was not placed on record; (ii) As many as 3 lacerated wounds on the head were received by the accused-appellant still after receiving such serious injuries, the appellant was charged to use firearm. (iii) In the FIR informant Devilal admitted to have inflicted lathi blow on the person of accused-appellant but before the learned trial Judge he disowned even the manner of institution of FIR. He denied to have caused any injury on the person of accused-appellant. (iv) Although entry wound was found on the dead-body but there was no exit wound and no pallet or bullet was recovered from the dead-body. Even no pallet or bullet was seen at the place of occurrence. (v) All the alleged eye-witnesses of the occurrence were either interested or chance witnesses and none of them explained the injuries received by the accused-appellant over his head or other. part of the body. (vi) As per the testimony of alleged eye-witnesses the gun was fired at a distance of 14 steps but according to post-mortem report the injury received by the deceased was encircled by slight blackening. 14. It is well settled that where prosecution evidence consists of interested and inimical witnesses, non-explanation of injuries sustained by the accused assumes greater importance. It renders the prosecution story not wholly true. There are certain broad incongruities staring at the prosecution version against the appellant. They can be narrated below : (i) Report of ballistic expert was deliberately withheld and it could not be established that the shot was fired from the gun allegedly recovered at the instance of the appellant. (ii) Slight blackening over the wound received by the deceased, reveals that gun was not fired at a distance of 14 steps. (iii) Non-explanation of the injuries sustained by the accused-appellant renders the testimony of witnesses unreliable. (iv) Foundation of prosecution case stands demolished as the author of FIR disowned it. 15. (ii) Slight blackening over the wound received by the deceased, reveals that gun was not fired at a distance of 14 steps. (iii) Non-explanation of the injuries sustained by the accused-appellant renders the testimony of witnesses unreliable. (iv) Foundation of prosecution case stands demolished as the author of FIR disowned it. 15. In view of afore-quoted infirmities we are of the view that the prosecution has failed to establish charge against the accused-appellant beyond reason- able doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time tested rule that the greater the offence, the grater should be the care taken to see that neither an innocent person is convicted nor a guilt allowed to escape. 16. For the reasons aforementioned we allow the appeal of the accused-appellant-Lal Chand and set-aside the judgment dated 27.2.1997 of the learned Additional District & Sessions Judge No. 3, Kota. The accused-appellant is acquitted from the charge u/s. 302 IPC. The accused-appellant who is in jail shall be set at liberty forthwith, if not required-in any other case.Appeal allowed. *******