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2005 DIGILAW 190 (HP)

RAJNEESH KUMAR ALIAS TOM v. STATE OF H. R

2005-06-09

LOKESHWAR SINGH PANTA, SURJIT SINGH

body2005
JUDGMENT Surjit Singh, J.—Appellant Rajneesh Kumar is aggrieved by the judgment dated 31.12.2002 of the learned Sessions Judge, Bilaspur whereby he has been convicted of an offence, under Section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for one year. 2. Prosecution version, as per record of the trial court, may be summed up thus. Parkash Chand father of the appellant, who was impleaded as co-accused with the appellant for allegedly having committed an offence under Section 25 of the Arms Act, 1959, had two brothers, named Jagdish Kumar (PW 11) and Kuldip Kumar (deceased). All the three formed a joint family and had their permanent residence in village Gugga Mohra, falling within the jurisdiction of Police Station, Shahtalai in Bilaspur District. However, they had their separate businesses at Chandigarh and so they lived there probably in separate rented accommodations. On 19.12.2000 Jagdish Kumar (PW 11) and Kuldip Kumar (deceased) along their wives visited their relatives in some village in Bilaspur District. On 20.12.2000 they went to their native place Gugga Mohra. They in the company of appellant No. 1, who is their nephew, being the son of their elder brother Parkash Chand, and their brother-in-law Raj Kumar (PW 10) consumed liquor in the upper storey of the house. While consuming liquor the appellant and the deceased happened to have a wordy duel. They were pacified by Jagdish Kumar (PW 11) and Raj Kumar (PW 10). Thereafter all the four and Shanti Devi (PW 12) wife of deceased Kuldip Kumar and Prem Lata wife of Jagdish Kumar took their meals. After finishing their meals, they all went to the ground floor to sleep in separate rooms. When deceased Kuldip and his wife were preparing to go to sleep, the appellant allegedly went to their room. He looked furious. Kuldip Kumar (deceased) asked him to go his room and sleep there. PW 11 Jagdish Kumar also reached there and he allegedly slapped the appellant for having gone to the deceaseds bed-room in rage. The appellant is alleged to have then proceeded towards the upper storey of the building. He was followed by the deceased, his wife Shanti Devi (PW 12) and Jagdish Kumar (PW 11). PW 11 Jagdish Kumar also reached there and he allegedly slapped the appellant for having gone to the deceaseds bed-room in rage. The appellant is alleged to have then proceeded towards the upper storey of the building. He was followed by the deceased, his wife Shanti Devi (PW 12) and Jagdish Kumar (PW 11). The appellant is alleged to have reappeared from room on the upper storey of the building with a double barrel gun when the deceased, his wife Shanti Devi and Jagdish Kumar were still on way to the upper storey of the house and had reached the moterable road in front of the said storey. It may be stated here that the upper story of the house abuts on the moterable road and for going to the ground floor there is a separate passage which branches off from the said road. The appellant is alleged to have fired a shot, which hit the deceased on his chest, on the right side and after passing through the chest obliquely went out from the left side, through abdomen at a point just below the ribs. The deceased cried "Hai-Hai" for a short while and fell quiet. 3. Jagdish Kumar (PW 11) who too went to the upper side along with the deceased and the deceaseds wife Shanti Devi (PW 12) overpowered the appellant, after he fired the gun shot. He snatched the gun from the appellant and gave him beating with gun, as a result of which the butt of the gun got broken into several pieces and its barrel (double) got separated from the butt. The deceased was taken to Rural Hospital, Ghumarwin, where he was declared brought dead. It appears that the doctors at Rural Hospital, Ghumarwin gave a ring to the local police, i.e. Police Station, Ghumarwin. The official concerned at Police Station, Ghumarwin, in turn informed, telephonically, the authorities of Police Station, Shahtalai, as the place of occurrence falls within the jurisdiction of that Police Station. Around 4.00 AM, Sub Inspector Anjani Kumar, SHO, Police Station, Shahtalai reached Rural Hospital, Ghumarwin. He recorded the statement of Shanti Devi (PW 12) the wife of the deceased, under Section 154 of the Code of Criminal Procedure. Around 4.00 AM, Sub Inspector Anjani Kumar, SHO, Police Station, Shahtalai reached Rural Hospital, Ghumarwin. He recorded the statement of Shanti Devi (PW 12) the wife of the deceased, under Section 154 of the Code of Criminal Procedure. The lady stated that her husband (deceased Kuldip Kumar), her husbands nephew Rajneesh Kumar alias Toni (the appellant), her husbands sister husband Raj Kumar (PW 10) and her husbands brother Jagdish Kumar (PW 11) consumed liquor in the upper storey of the house and thereafter all the members of the family took their meals and around 11.00 PM, she accompanied by Pinki (wife of PW 11 Jagdish Kumar) went to the ground floor to prepare bedding and Jagdish Kumar also followed them, while the appellant and the deceased remained on the upper floor. She further stated that soon after reaching the ground floor, she heard the cries and the sound of the gun shot and on hearing such cries and the sound, she and Pinki went running towards the upper storey and saw Toni, (pet name of the appellant) coming downwards and Jagdish Kumar giving beating to him cursing him for having killed his (Jagdish Kumars) brother Kuldip Kumar. She further stated that on reaching the road she saw her husband Kuldip Kumar lying on the road with his chest bleeding profusely and on inquiry her husband told that Toni, (the appellant) had fired a gun shot at him. The aforesaid statement was sent to the Police Station, Shahtalai, for formal registration of the case. 4. The dead body was taken to Zonal Hospital, Bilaspur for postmortem examination. Before that inquest was conducted and necessary forms were filled in. The doctors at Zonal Hospital, Bilaspur noticed an entry wound on the right side of the chest and exit wound at the abdomen on the left side. The wounds were opined to be ante- mortem. The cause of death was opined to be hypovolumic shock and injuries to the vital organs. Sub-Inspector Anjani Kumar, SHO then visited the spot and he found on the spot pieces of the butt of gun and a denture having two teeth. The same were taken into possession. The double barrel of the gun was found lying in the house of Parkash Chand, the father of the appellant. Sub-Inspector Anjani Kumar, SHO then visited the spot and he found on the spot pieces of the butt of gun and a denture having two teeth. The same were taken into possession. The double barrel of the gun was found lying in the house of Parkash Chand, the father of the appellant. In one of the barrels of the gun, there was an empty cartridge, which too was taken into possession and made up into a parcel. He then recorded the statements of the witnesses, under Section 161 of the Code of Criminal Procedure. PW 11 Shanti Devi, in her statement under Section 161 of the Code of Criminal Procedure, changed her earlier version and stated that she saw the appellant firing a gun shot at her husband with her own eyes. She stated that the version given by her, per statement, under Section 154 of the Code of Criminal Procedure, was not correct and the explanation offered by her was that she was under deep shock and therefore, could not state true facts. 5. The barrel of the gun and the empty cartridge were sent to Ballistic Expert but he could not express any opinion whether the cartridge had been fired through the barrel. On completion of the investigation, challan was prepared and presented in the court of concerned Judicial Magistrate, who committed the case (after complying with the requirement of Section 207 of the Code of Criminal Procedure) to the Sessions Court, Bilaspur and the learned Sessions Judge after trying the appellant and his father Sh. Parkash Chand, who was challaned under Section 25 of the Arms Act, convicted and sentenced the appellant under Section 302 of the Indian Penal Code, as aforesaid, though his (appellant) father was acquitted of the charge under Section 25 of the Arms Act. 6. Grievance of the appellant is that there is no evidence on record connecting him with the commission of the crime, in as much as the sole alleged eye witness, namely PW 12 Shanti Devi, is contradicted by her earlier version which she gave to the police, in the form of a statement under Section 154 of the Code of Criminal Procedure Ex. PG (also Ex. PW 14/A) and the alleged weapon of offence, i.e. gun does not stand connected with the crime. 7. We have heard the learned counsel for the appellant (S/Sh. PG (also Ex. PW 14/A) and the alleged weapon of offence, i.e. gun does not stand connected with the crime. 7. We have heard the learned counsel for the appellant (S/Sh. Rakesh Jaswal and N.S. Chandel, Advocates) as also the learned Additional Advocate General (Sh. Som Dutt Vasudeva). 8. Before touching the merits of the case, it may be stated that the burden of proof of the charge is always on the prosecution and unless this burden is discharged by the prosecution, by leading unimpeachable and convincing evidence, whether direct or circumstantial, an accused cannot be convicted simply because he has failed to offer a reasonable and convincing explanation as to who else, if not he, has or could have committed the crime or if such an explanation is offered, the same is found to be unconvincing. Of course, a false explanation offered by an accused becomes a circumstance to hold him guilty, but before this circumstance is pressed into service, the prosecution is bound to prove that the crime is committed by the accused. 9. In this case PW 12 Smt. Shanti Devi is the star witness of the prosecution. The crime is alleged to have been committed around 11.00 a.m. The first information of the crime was given to the police, per prosecution, by PW 12, by making statement under Section 154 of the Code of Criminal Procedure, Ex. PG. Per contents of this statement on the night intervening 20th and 21st December, 2000, the deceased (Kuldip Kumar), the appellant (Rajneesh Kumar alias Toni), PW 10 Raj Kumar and PW 11 Jagdish Kumar took liquor in the house of the father of the appellant and thereafter all the above named four persons and PW 12 Smt. Shanti Devi and the wife of PW 11 Jagdish Kumar, named Pinki, took their meals. After taking the meals PW 12 Shanti Devi, PW 11 Jagdish and Pinki wife of PW 11 Jagdish went to the ground floor of the house to prepare beddings while appellant and the deceased remained in the room on the upper floor and when they were on the ground floor, they and Jagdish heard the cries and the sound of a gun shot and upon hearing such cries and the sound of gun shot, Shanti Devi (PW 12) and Pinki rushed towards the upper storey and in the meanwhile they saw the appellant coming towards the ground floor and Jagdish started beating him up while cursing and accusing him that he (the appellant) had killed his brother Kuldip Kumar. Shanti Devi (PW 12) continued going upwards and on reaching the road she saw the deceased lying on the road and blood flowing from his chest. On inquiry by Shanti Devi (PW 12), his wife, the deceased told that Toni (the appellant) had fired a gun shot at him. Now this is the earliest version which PW 12 Shanti Devi gave to the Police at 4.15 a.m., on 21.12.2000, or say within four-five hours of the occurrence. 10. In the court, however, Shanti Devi, while appearing as PW 12 gave an altogether different narration of the incident. She stated that when taking liquor, the appellant and the deceased happened to exchange hot-words and that after taking their meals, she and the deceased retired to a room on the ground floor, where the appellant followed them and at that time he was looking furious, upon which her husband (the deceased) directed him to go and sleep in his own room. She further stated that when the appellant was still there, Jagdish Kumar (PW 11) slapped him upon which he (the appellant) ran towards the upper floor and she and her husband (the deceased) followed him. She also stated that the appellant re-appeared from a room on the upper floor and fired a gun-shot at her husband and then he (the appellant) was overpowered by PW 11 Jagdish Kumar and given beating with that very gun by Jagdish Kumar. She was duly confronted with her earliest version which she gave to the police in the form of statement, under Section 154 of the Code of Criminal Procedure (Ex.PG). She was duly confronted with her earliest version which she gave to the police in the form of statement, under Section 154 of the Code of Criminal Procedure (Ex.PG). She was specifically confronted with the portions of her statement that she heard the cries and the cracking sound of the gunshot, from the upper storey and went running upwards in the company of Pinki (portion A to A) and that when she reached the road and saw her husband lying on the road with his chest bleeding profusely and asked him (her husband) as to what had happened, the latter told her that he had been shot at by Toni (portion C to C). The explanation offered by her for the major contradictions in her statement in the court as PW 12 and the earliest version given by her to the police, vide statement Ex. PG, is that she was under deep shock due to the death of her husband and so she could not narrate the facts correctly. At the same time when specifically confronted with the aforesaid marked portions of her statement, she denied having stated those portions. The explanation, on the face of it, is unconvincing. Undoubtedly a woman, on coming to know about the murder of her husband, would go into deep shock, but that would definitely not deprive her of the sense of discrimination and that too to such an extent that she, inspite of her having seen the murder taking place with her own eyes (as PW 12 has claimed in her deposition), would not state this fact to the police, while lodging the First Information Report and instead would state the facts which are totally different, like the ones in the present case, viz. the gun shot was heard, then the witness went running to the road and saw her husband lying in a pool of blood and her husband told her on inquiry that he had been shot dead by the man facing the trial. This apart, the witness is not like an ordinary house wife with rural background. She per her own deposition was born and brought up at Chandigarh. She is not the legally wedded wife of the deceased. She started living with him as his wife, knowing full well that the deceased was already married to a woman named Urmila (the lady has appeared as DW 1). She per her own deposition was born and brought up at Chandigarh. She is not the legally wedded wife of the deceased. She started living with him as his wife, knowing full well that the deceased was already married to a woman named Urmila (the lady has appeared as DW 1). Not only this, she gave birth to two daughters from the loins of the deceased and even visited the native place of the deceased, in his company, as also in the company of the deceased brothers and sisters-in-law, in spite of the fact that the deceased had his married wife living in the area. Thus in the case of PW 12 the above stated observation of this court that a woman on coming to know about the murder of her husband, would not be deprived of her sense of discrimination to such an extent that she will narrate an imaginary story to the police while lodging the First Information Report, applies with double force. 11. Under these circumstances, the testimony of PW 12 Shanti Devi, which is contradicted in material particulars, by the First Information Report, Ex. PG, which she herself lodged with the police, soon after the occurrence, cannot form the basis for convicting the appellant of the offence, under Section 302 of Indian Penal Code, unless corroborated by some other reliable evidence. And for corroboration there is absolutely no evidence. 12. PW 10 Raj Kumar, the brother-in-law of the deceased, and PW 11 Jagdish Kumar, a brother of the deceased, do not corroborate the prosecution version. Both of them were cross-examined by the prosecution, with the leave of the court, but even in their cross-examination by the prosecution, they did not state any fact or circumstance which may be used as corroborative piece of evidence in support of the testimony of PW 12 Shanti Devi. 13. Prosecutions version, as per report under Section 173 of the Code of Criminal Procedure and other papers filed therewith was that after the gun shot had been fired by the appellant, PW 11 Jagdish Kumar a "Chacha" of the appellant snatched the gun from him (the appellant) and thrashed him with that very gun, as a result of which, the butt got broken into several pieces and the barrel got separated from the butt. Not only that PW 11 Jagdish Kumar does not corroborate this version of the prosecution, even the testimony of PW 12 is self contradictory on the point. In the examination-in-chief, she states that the gun got broken, when Jagdish Kumar gave beating to the appellant with the same, after the gun shot was fired. But in the cross-examination, she says that she does not know, if the gun got broken due to the beating given to the appellant by the police. 14. It is also the case of the prosecution that the appellant sustained several injuries on his person as a result of the beating given to him with the gun by PW 11 Jagdish Kumar and that the appellant was got medically examined, immediately after his arrest on 21.12.2000. Medico legal certificate Ex. PW 14/C was tendered by the Investigating Officer, namely PW 14 Anjani Kumar. However the doctor who has conducted the medical examination of the appellant was not examined by the prosecution, for the reasons best known to it. There is no evidence (because the doctor has not been examined) indicating that the injuries which were found on the person of the appellant, per certificate Ex. PW 14/C, would have been caused as a result of the beating given with the gun, in question. In any case, the injuries which were noticed on the person of the appellant, per certificate Ex. PW 14/C, were simple in nature. 15. The appellant was again got medically examined on 24.12.2001 from Dr. S.P.Pathania PW 9. The witness issued medico legal certificate Ex. PR. He noticed the same very injuries on the person of the appellant, which were earlier noticed by the doctor who issued the certificate Ex. PW 14/C. While appearing in the witness box, PW 9 Dr. Pathania, stated that the injuries could have been caused by means of butt Ex. P-5 shown to him. The statement is merely in the form of opinion and does not prove that in fact the injuries were caused by means of the butt of the gun. This opinionative evidence does not fit in the prosecution story that the appellant was given beating with the gun by PW 11 Jagdish and in that process the gun was broken. The statement is merely in the form of opinion and does not prove that in fact the injuries were caused by means of the butt of the gun. This opinionative evidence does not fit in the prosecution story that the appellant was given beating with the gun by PW 11 Jagdish and in that process the gun was broken. If the appellant was thrashed with the gun and in that course the gun got broken, it can legitimately be presumed that the thrashing was severe and it ought to have resulted in some serious injuries and not only simple injuries like abrasions and a small contusion, as mentioned in the certificates Ex. PW 14/C and Ex. PR. 16. There is no evidence worth the name, connecting the gun, in question with the crime. According to the prosecution, the gun got broken, when PW 11 Jagdish Kumar, gave beating to the appellant with the same and its barrel got separated from the butt and the butt got broken into several pieces. The pieces of the butt are alleged to be Ex. P-l to P-4 and the barrel Ex. P-5. The barrel was recovered from a room, in the upper storey of the house of the father of the appellant and the pieces were recovered partly from the spot and partly from the bushes near the spot. There was allegedly a shell in one of the barrels, which is Ex. P-6. The barrel and the cartridge shell were sent to the Ballistic Expert, namely PW 13 Rajesh Kumar, Scientific Officer, Physics & Ballistic Expert, FSL, Bharari, who gave his report in writing, which is Ex. PQ. The only opinion which has given in the report is that the shirt of the deceased, at the point where there was a hole in it, did not have any contents of gun powder. The report reads that no further opinion could be given because the gun was not fit for test fire. The Expert did not give any opinion that the gun had been fired through, it had any traces of gun powder or smoke indicating that it had been fired through recently or that the cartridge shell Ex. The report reads that no further opinion could be given because the gun was not fit for test fire. The Expert did not give any opinion that the gun had been fired through, it had any traces of gun powder or smoke indicating that it had been fired through recently or that the cartridge shell Ex. P-6 had been fired through by it or it had been fired at all, because there is no opinion that the pin of the shell bore any mark indicating that the hammer of the gun, in question, or for that matter any other gun, had hit it. 17. The testimony of PW 12 Shanti Devi is thus not corroborated even by the evidence of the Expert. Not only that the Ballistic Expert evidence does not corroborate the prosecution version in general and the testimony of PW 12 in particular, the cross-examination of the Ballistic Expert, PW 13 Rajesh Kumar, in fact gives the impression that the empty shell Ex. P-3 may not be of the cartridge that was fired at the deceased. The Expert has stated quite categorically that the shell Ex. P-3 is of a multi pallet cartridge, but the testimony of the doctor who conducted the post-mortem examination, namely PW 5 Dr. N.K. Sankhyan, as also the post-mortem report Ex. PM prove that there were two wounds, one entry wound and one exit wound and no pallets were found inside the body nor any pallet wounds were noticed on the dead-body. Not only this even no pellets were found lying on the spot. The piece that pierced through the chest (right side) and the abdomen (left side) was also not found on the spot. All this shows that probably Ex. P-6 is not the cartridge that hit the deceased. That means only one piece from the cartridge hit the deceased on the right side of the chest and after fracturing a few ribs exited from the left side through the abdomen. 18. The learned Sessions Judge has given very strange reasons to hold the appellant guilty of the charge under Section 302 of the Indian Penal Code. One reason is that PW 10 Raj Kumar and PW 11 Jagdish Kumar, both being the close relatives of the appellant, have apparently lied and suppressed the true facts with a view to helping the appellant. One reason is that PW 10 Raj Kumar and PW 11 Jagdish Kumar, both being the close relatives of the appellant, have apparently lied and suppressed the true facts with a view to helping the appellant. This has been used as a circumstance by the learned Sessions Judge against the appellant. The observation that the two witnesses being the close relatives of the appellant have lied and suppressed the true facts may be correct and rather appears to be so, but to use this as a circumstance for holding the appellant guilty of the charge of murder, is unwarranted by the basic principles of criminal jurisprudence, especially the principle that burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. 19. Another reason given by the learned Sessions Judge is that the explanation given by the appellant about the receipt of the gun shot injury by the deceased Kuldip Kumar is unconvincing. As a matter of fact the appellant has not given any specific explanation nor was he supposed to have given any, in the facts and the circumstances of the case. There could have been a need for the appellant to give a plausible explanation, if it was established beyond reasonable doubt that he and only he had the occasion and the opportunity to fire the gun shot and the shot had been fired through the gun, in question. First it is not established that the shot that hit the deceased was fired through the gun, in question, as noticed hereinabove. Secondly, there were several persons, viz. PW 10 Raj Kumar, PW 11 Jagdish Kumar, PW 12 Shanti Devi and Prem Lata wife of PW 11 Jagdish Kumar in the house where the gun was kept. Even if it be assumed for the sake of argument that it was the gun, in question, through which the shot was fired at the deceased, it cannot be said with certainty, in view of the evidence discussed hereinabove that it was the appellant and the appellant alone who fired the shot. Under such circumstances, the appellant was not supposed to have offered any explanation. 20. And the observation of the learned trial Court that the explanation is unconvincing or plausible is also unfounded. The appellant did not make any specific or definite explanation. Under such circumstances, the appellant was not supposed to have offered any explanation. 20. And the observation of the learned trial Court that the explanation is unconvincing or plausible is also unfounded. The appellant did not make any specific or definite explanation. The so called explanation is in general terms that the deceased might have been hit by a stray bullet fired by someone to scare away the boars or someone from amongst those to whom the deceased owed huge amounts of money might have killed him. It may be stated that suggestions were thrown to the prosecution witnesses that the deceased was a travel agent and used to arrange to send people to foreign, countries for which he charged money from the prospective immigrants and in that business he incurred huge losses because he could not arrange to send abroad all those persons, from whom he charged huge amounts of money and those persons were after his blood. 21. It has been further observed by the learned trial Court that the appellant has not offered reasonable explanation for the injuries which he received, allegedly on account of the beating given to him by PW 11 Jagdish Kumar by means of gun. As already noticed, the evidence on record does not prove this allegation. Jagdish Kumar PW 11 denies having beaten up the appellant with the gun. PW 10 Raj Kumar also does not prove the fact. Shanti Devi herself says in the cross-examination that she does not know how the gun got broken, which by implication means that gun was not used to give beating to the appellant. Nature of the injuries found on the person of the appellant at the time of his medical examination both on 21.12.2000 and 24.12.2000 also creates a doubt about the allegation that the appellant was beaten up with the gun by PW 11 Jagdish Kumar, immediately after he allegedly fired the shot at the deceased. 22. Reasons given by the learned Sessions Judge to accept the testimony of PW 12 Shanti Devi the wife of the deceased, in spite of the fact that she is completely contradicted by the earliest version which she gave to the police, vide Ex. PG are not real but imaginary. 22. Reasons given by the learned Sessions Judge to accept the testimony of PW 12 Shanti Devi the wife of the deceased, in spite of the fact that she is completely contradicted by the earliest version which she gave to the police, vide Ex. PG are not real but imaginary. One such reason is that PW 12 had married the deceased without the consent of his brothers, i.e. Jagdish Kumar PW 11 and Parkash Chand, the father of the appellant and so only she was supposed to have rushed to rescue of her husband. There is absolutely no evidence on record showing that the marriage of the deceased with PW 12 was not approved by his brothers. On the contrary the fact that PW 12 visited the deceaseds native place and even stayed at his brothers house negatives the reason that PW 12 was unacceptable in the family. In any case, it is not understood how the assumed lack of consent of the brothers of the deceased in the matter of his (deceaseds) marriage with PW 12 Shanti Devi makes her a trustworthy witness, when she is not only not corroborated by the earliest version which she gave to the police, but is also contradicted, by the same, in all material particulars. 23. Another reason stated by the learned trial court to accept the testimony of PW 12 Shanti Devi is that she must have gone in deep shock on seeing her husband being killed by his own nephew by a gun shot and so she happened to narrate the incident incorrectly to the police by lodging the First Information Report. For the reasons stated hereinabove, we are unable to endorse this reasoning of the learned trial court, which is perverse, on the face of it. 24. To counter the argument advanced by the learned defence counsel that PW 12 was an interested witness being the wife of the deceased, the learned trial court has observed that she is not an interested witness, because she had been accepted as the wife of the deceased by PW 10 Raj Kumar and PW 11 Jagdish Kumar and all other members of their family and so she could not be said to be an interested witness. This reasoning is diametrically opposite to the earlier noticed observation made by the learned trial court that PW 12 had been taken as his wife by the deceased, without the consent of his brothers and so she was not acceptable in the family. 25. Other reasons recorded by the learned trial court to hold the appellant guilty are that; (a) the double barrel gun (allegedly used in the commission of the crime) had been snatched from the appellant by PW 11 Jagdish Kumar and then with the same gun he threatened the appellant; (b) the father of the appellant is rich and moneyed man and his writ runs among all his relatives, including his brothers, and that is why his brother PW 11 Jagdish Kumar and brother-in-law PW 10 Raj Kumar and deceaseds wife DW 1 Urmila Devi have not supported the prosecution version; (c) there were injuries on the person of the appellant and his explanation about the same is false; (d) that PW 11 Jagdish Kumar had made false statement that he did not give beating to the appellant with the gun, because if he had stated the-true facts, he would have been guilty of the offence under Section 201 of Indian Penal Code for destroying the evidence by having broken the gun into pieces and thereby making it impossible for the Ballistic Expert to give opinion that the gun had been fired through; (e) the shot had been fired from a distance of 30 cm. to 2 meters per deposition of PW 5 Sh. N.K. Sankhyan and that is why there was only one entry hole and one exit hole in spite of the fact that empty cartridge Ex. P-6 has been opined by the Ballistic Expert to be shell of a multi pallet cartridge. 26. The aforesaid reasons in no way lend credibility to the deposition of PW 12 Shanti Devi, whose testimony, as already noticed, is completely shattered, because it is contradicted in all material particulars by the First Information Report Ex. PG, which she lodged within four-five hours of the occurrence and there is no plausible explanation for such contradictions. 27. As an upshot of the above discussion it is held that the charge against the appellant does not stand proved beyond reasonable doubt. PG, which she lodged within four-five hours of the occurrence and there is no plausible explanation for such contradictions. 27. As an upshot of the above discussion it is held that the charge against the appellant does not stand proved beyond reasonable doubt. Consequently the appeal is accepted and the judgment of the trial court convicting and sentencing the appellant for the offence under Section 302 of Indian Penal Code is set aside and the appellant is acquitted of the said charge. He being in jail, for serving out the sentence awarded by the learned trial court through the impugned judgment, is ordered to be set at liberty forthwith, provided his detention is not required in some other case. Appeal allowed.