Judgment H.R. Panwar, J.-This jail appeal is directed against the Judgment and order dated 011.2003 passed by the Additional Sessions Judge (Fast Track), Chittorgarh (for short, "the trial Court") in Sessions Case No. 37/2003, whereby the trial Court convicted accused-appellant Gokal for the offences under Section 307, IPC, and Section 3/25 of the Arms Act, 1959 and sentenced to undergo three years simple imprisonment and a fine of Rs. 2,000/-and in default of payment of fine to further undergo one months simple imprisonment for the offence under Section 307, IPC and one years simple imprisonment and a fine of Rs. 1,000/-and in default of payment of fine further to undergo 15 days simple imprisonment for the offence under Section 3/25 of the Arms Act. 2. Briefly stated, the facts relevant and necessary for decision of this jail appeal are that injured Bhanwar Lal, on 011.2002, lodged an FIR No. 564/2002 (Ex. P/17) with Police Station, Kotwali, Chittorgarh, inter alia, alleging therein that the appellant caused fire-arm injury to him as well as to his wife Smt. Geeta. On the said information, the investigation ensured and after investigation, the police filed challan against the appellant for the offences under Section 307, IPC and Section 3/25 of the Arms Act. On the case being committed to the Court of Sessions, the charges were framed against the appellant, who denied the charges and sought trial. The prosecution examined as many as 15 witnesses and produced documents Ex.P/1 to Ex.P/32. The accused-appellant made statement under Section 313 CrPC and denied the allegations. The trial Court, vide impugned Judgment and order dated 011.2003, convicted and sentenced the appellant as stated above. 3. I have heard learned Amicus Curiae for the appellant and the Public Prosecutor for the State. Carefully gone through the Judgment and order impugned as also the record of the trial Court. 4. In the instant case, injured Bhanwar Lal and his wife Smt. Geeta have not been produced by the prosecution. However, the prosecution has relied upon the statement of PW. 6 Durga Lal, PW. 7 Shambhu Lal, PW. 9 Girdhari Singh and PW. 10 Pappu Lal to connect the appellant with the offences as aforesaid. 5. PW. 1 Hemant Kumar is a witness to the arrest memo of the appellant and he has proved the arrest memo Ex. P/1. PW. However, the prosecution has relied upon the statement of PW. 6 Durga Lal, PW. 7 Shambhu Lal, PW. 9 Girdhari Singh and PW. 10 Pappu Lal to connect the appellant with the offences as aforesaid. 5. PW. 1 Hemant Kumar is a witness to the arrest memo of the appellant and he has proved the arrest memo Ex. P/1. PW. 2 Gopal Lal is the police official, who was the Malkhana Incharge. He has proved Ex. P/2, by which the articles were sent to the State Forensic Science Laboratory, Jaipur. He has also proved the receipt, by which the article (gun) was handed over to the FSL. According to this witness, the seals on the article remained intact through out the intervening period. PW. 5 Mithu Singh Chauhan is the Armourer, who has proved Ex. P/10 and stated that a single barrel gun was examined by him and on being examined, it was found serviceable and operational. PW. 7 Shambhu Lal Gameti is a witness to the site inspection memo and site inspection note Ex. P/10. PW. 8 Rod Singh is a police official, who received the single barrel gun from the investigation officer PW. 15 Ram Ratan and made an entry in the Malkhana Register. He has proved that till the gun was handed over to Gopal Lal for carrying the same to the office of the Superintendent of Police, Chittorgarh and then for onward sending to the FSL, the seals on the article remained intact. He has also proved Ex. P/14 and Ex. P/14-A. PW. 15 Ram Ratan is the investigating officer, who has stated that on the Parcha-Bayan Ex. P/15 of injured Bhanwar Lal, he registered the FIR Ex. P/17 and conducted investigation. During investigation, he recorded the statement of witnesses, prepared the site map and site inspection note and arrested appellant vide Ex. P/1. He has stated that while in custody, the appellant made a statement under Section 27 of the Evidence Act vide Ex. P/18 and in furtherance thereof , a gun was got recovered by the appellant from his residential house in the presence of Motbirs vide Ex. P/11. On being asked, the appellant failed to produce any licence to possess the said gun. The gun was got examined by the Armourer vide Ex. P/10. The injured persons were got medically examined by the Medical Authorities vide Ex. P/8 and Ex. P/11. On being asked, the appellant failed to produce any licence to possess the said gun. The gun was got examined by the Armourer vide Ex. P/10. The injured persons were got medically examined by the Medical Authorities vide Ex. P/8 and Ex. P/9 and X-ray report Ex. P/6. He has proved the sanction Ex. P/16 accorded by the District Collector, Chittorgarh for prosecuting the appellant for the offence under Section 3/25 of the Arms Act. He has also proved seizure memo of the gun Ex. P/19 and the Roznamcha report Ex. P/21. PW. 3 Dr. Ramesh Maheshwari, Radiologist, radiologically examined injured Bhanwar Lal and proved the X-ray report Ex.P/6 and opined that the injured suffered a fracture of humer bone. He has also proved Ex. P/5, Ex. P/6 and Ex. P/7. PW. 4 Dr. Kamal Bhargava was the Medical Jurist, who medically examined injured Bhanwar Lal and his wife Smt. Geeta. He has proved injury report Ex. P/8, according to which injured Bhanwar Lal sustained the following injuries:- 1. Lacerated wound ½ cm. x 1 cm. on the right thigh anteriory. Blackening of margin ½ cm. x skin deep as shown in figure sketch. 2. Swelling and deformity 3 ½ x 3 ½ cm. on right thigh. PW . 4 Dr. Kamal Bhargava also medically examined Smt. Geeta and proved the injury report Ex. P/9, according to which injured Smt. Geeta sustained the following injuries:- 1. Lacerated wound ½ cm. x ½ cm. on the left hand entry and blackening of margin. 2. Lacerated wound ½ cm. x ½ cm. on the left hand palmer exist protruding timer from wound. 3. Lacerated wound ½ cm. x ½ cm. skin deep on right thigh upper 1/3 margin. PW. 6 Durga Lal, who is said to be an eye-witness of the occurrence, has turned hostile and did not support the prosecution case. However, he has proved Ex. P/12, by which the single barrel gun was recovered from the possession of the appellant. He has also proved the site map and the site inspection memo Ex. P/10. He has stated that at about 8:00-9:00 p.m., hearing the noise, he came out from his house and noticed that Bhanwar Lal was lying on the ground and his wife Smt. Geeta was standing by his side and she was shouting. At some distance, appellant Gokal was standing. P/10. He has stated that at about 8:00-9:00 p.m., hearing the noise, he came out from his house and noticed that Bhanwar Lal was lying on the ground and his wife Smt. Geeta was standing by his side and she was shouting. At some distance, appellant Gokal was standing. However, he did not see anything in the hand of appellant Gokal. According to this witness, Bhanwar Lal and Smt. Geeta sustained pellet-injuries. He went to call his employer (Sethji). However, he stated that subsequently the police came and prepared the site map Ex.P/10 and recovered the gun at the instance of the appellant vide Ex. P/11. He was subjected to cross-examination by the Additional Public Prosecutor, wherein he categorically stated that he did not see the appellant opening fire form the gun. However, he has stated that the gun was recovered at the instance of the appellant. PW. 7 Shambhu Lal stated that at about 10:00 p.m., appellant and Bhanwar Lal consumed liquor and thereafter Gokal hurled abuses, to which Bhanwar Lal objected. Gokal brought a gun from his house. Bhanwar Lal suffered gun shot injuries on his thigh and Smt. Geeta on her palm. Thereafter, the employer (Sethiji) was called upon and the injured were taken to the hospital. The police prepared the site map Ex. P/10 and recovered the gun at the instance of the appellant. When cross-examined, he admitted that he had not seen the appellant firing the gun. However, he was consistent with the version deposed by him in the examination-in-chief regarding recovery of the gun at the instance of the appellant. PW. 9 Girdhari Singh, the employer (Sethji), in whose residential quarters the appellant, injured and other witnesses viz. PW. 6 Dugra Lal , PW. 7 Shambhu Lal and PW. 10 Pappu Lal, were residing, has stated that at about 10:00/10:30 p.m., PW. 10 Pappu Lal came to him and informed that appellant had fired the gun. Thereupon, he went to the place of occurrence and found Bhanwar Lal lying there and bleeding from the thigh. He has stated that Bhanwar Lals wife Smt. Geeta was sitting by his side and there was bleeding form her palm. Both of them informed that appellant fired the gun and caused injuries to them. Thereupon, he went to the place of occurrence and found Bhanwar Lal lying there and bleeding from the thigh. He has stated that Bhanwar Lals wife Smt. Geeta was sitting by his side and there was bleeding form her palm. Both of them informed that appellant fired the gun and caused injuries to them. He is not an eye-witness to the occurrence and his evidence is hear-say evidence for the reason that injured Bhanwar Lal and Smt. Geeta have not been produced and examined by the prosecution. His evidence could have been used for corroborative purpose had injured Bhanwar Lal and Smt. Geeta would have been examined. PW. 10 Pappu Lal has stated that after taking meals on the eve of Deepawali, he was sleeping. The appellant and injured Bhanwar Lal came after consuming liquor and there was some altercation between them. However, he stated that when Gokal fired the gun, he had not seen but he had seen the injuries suffered by Bhanwar Lal and his wife Smt. Geeta. Thereafter, he went to call his employer (Sethiji) viz. PW. 9 Girdhari Singh. On arrival of the employer (Sethji), the injured were taken to the hospital. He was informed by one of the Motbirs that Bhanwar Lal sustained gun injuries. He categorically stated that he did not see the appellant firing the gun as at the time of the concurrence, he was sleeping. PW. 13 Bhanu Mal, an official of the Office of the District Collector, Chittorgarh, has proved the Sanction Ex. P/16 accorded by the District Collector for prosecuting the appellant for the offence under the Arms Act. 6. From the above-noticed prosecution evidence, the question remains for determination and consideration is: whether the appellant fired the gun attempting to commit murder of Bhanwar Lal and Smt. Geeta by causing injuries to them. Both these injured witnesses have not been produced and examined by the prosecution. Injured Bhanwar Lal and Smt. Geeta were the best persons to prove that it was the appellant who fired the gun attempting to murder them and caused injuries. For the reasons best known to the prosecution, these injured persons were neither produced nor examined by the prosecution. The other witnesses, viz. PW . 6 Durga Lal and PW . Injured Bhanwar Lal and Smt. Geeta were the best persons to prove that it was the appellant who fired the gun attempting to murder them and caused injuries. For the reasons best known to the prosecution, these injured persons were neither produced nor examined by the prosecution. The other witnesses, viz. PW . 6 Durga Lal and PW . 7 Shambhu Lal have clearly stated that they have not seen the appellant firing the gun towards Bhanwar Lal and Smt. Geeta and causing injuries to them. They are witnesses only to the extent that the gun was recovered on the information and at the instance of the appellant from the house occupied by him. These witnesses clearly stated that they had not seen the appellant opening fire from the gun and causing injuries to Bhanwar Lal and Smt. Geeta. They have only stated that Bhanwar Lal and Smt. Geeta were having injuries on their person, but who had caused those injuries, it has not been established by the prosecution. 7. PW . 9 Girdhari Singh and PW . 10 Pappu Lal are the witnesses who came at the place of the occurrence after it had taken place. The evidence of PW. 9 Girdhari Singh is hear-say as at the time of the occurrence, he was not present there but he was called subsequently by PW. 10 Pappu Lal. PW. 10 Pappu Lal has stated that at the time of the occurrence, he was sleeping in his house and after hearing the shouting, he came out-side his house and found Bhanwar Lal and Smt. Geeta having injuries. When appellant Gokal fired the gun, he had not seen. He has categorically stated that he came to know form a Motbir that Bhanwar Lal and his wife Smt. Geeta suffered gun-shot injuries. He categorically admitted that he had not seen any person firing the gun and causing injuries to the injured as at that time he was sleeping in his house. 8. Thus, there is a absolutely no evidence on record which may prove that the appellant fired the gun and caused injuries to Bhanwar Lal and Smt. Geeta. Since, these two injured persons neither appeared nor made any statement before the trial Court, therefore, the best evidence available with the prosecution has been withheld. Merely because the gun was recovered vide Ex. Since, these two injured persons neither appeared nor made any statement before the trial Court, therefore, the best evidence available with the prosecution has been withheld. Merely because the gun was recovered vide Ex. P/11 from the appellant, it cannot be inferred that he had caused injuries to Bhanwar Lal and Smt. Geeta. Had injured Bhanwar Lal and Smt. Geeta been produced and examined, probably they would have been the best persons to say who was the assailant and in what manner the occurrence took place. The injury reports Ex. P/8 and Ex. P/9, as also the Radiological Reprots Ex. P/4 to Ex. P/6, have been proved but the question still remains to be determined and considered is: who caused these injuries and by what weapon. The trial Court has not considered the prosecution evidence in right perspective while holding the appellant guilty for the offence under Section 307, IPC. On a close scrutiny of the statement of prosecution witnesses and on reappreciation of their evidence, I am of the view that the prosecution has failed to prove beyond reasonable doubt that it was the appellant who fired the gun and caused injuries to Bhanwar Lal and Smt. Geeta. Therefore, the conviction of the appellant for the offence punishable under Section 307, IPC cannot be sustained and is liable to be set-aside. 9. So far as offence under Section 3/25 of the Arms Act is concerned, in my view, from the evidence of the witnesses discussed hereinabove, it has been proved beyond reasonable doubt that the appellant was in possession of the single barrel gun without there being any licence to possess it. The gun was recovered from the conscious possession of the appellant and on being examined by the FSL, it was found to be serviceable and operational. The FSL report Ex. P/22 has been proved by the Assistant Director (Ballistics), who opined that on the examination of the barrel of residue indicates that submitted SBML gun (W/1) had been fired; however, the definite time of its last fire could not be ascertained. The Sanction issued by the District Collector, Chittorgarh to prosecute the appellant for the offence under the Arms Act has been proved by the prosecution witness PW . 13 Bhanu Mal. Thus, there is over-whelming evidence to hold the appellant guilty for the offence punishable under Section 3/25 of the Arms Act. The Sanction issued by the District Collector, Chittorgarh to prosecute the appellant for the offence under the Arms Act has been proved by the prosecution witness PW . 13 Bhanu Mal. Thus, there is over-whelming evidence to hold the appellant guilty for the offence punishable under Section 3/25 of the Arms Act. Therefore, the trial Court was justified in convicting and sentencing the appellant for the offence under Section 3/25 of the Arms Act, which requires no interference. 10. Consequently, the jail appeal is partly allowed. The Judgment and order impugned dated 011.2003 passed by the Additional Sessions Judge (Fast Track), Chittorgarh in Sessions Case No. 37/2003, to the extent of convicting and sentencing appellant Gokal S/o Ratan Bhil R/o Anoppura, Police Station Devgarh, district Rajsamand, for the offence under Section 307, IPC is hereby set-aside. However, the conviction and sentence of the appellant for the offence under Section 3/25 of the Arms Act is hereby affirmed. The appellant has already undergone the sentence of imprisonment for a period of more than one year. He has been in the custody since 011.2002 and, therefore, he has already undergone the sentence awarded to him for the offence punishable under Section 3/25 of the Arms Act, therefore, he be set at liberty forthwith, if not required in any other case.