JUDGMENT S.L. Kochar, J. 1. This judgment shall also govern disposal of both the appeals as both the appeal arise out of the Judgment dated 21-7-1995 passed by the Third Additional Sessions Judge, Dhar, in S. T. No. 335/91. Criminal Appeal No. 701/05 is filed by the accused- appellants whereby the appellant seeks to set aside the impugned judgment thereby finding the appellants Bhanwarlal, Gabbu guilty of the offence punishable under section 302 of the Indian Penal Code and the Accused Appellant No. 3 Kaniram under sections 302/34 of the Indian Penal Code and sentenced to undergo R. I. for life and to pay fine Rs. 100/- each, in default of fine to further undergone one week R. I. Appellant No. 3 Kaniram was also found guilty under section 25 of the Arms Act and sentenced to undergo three years R. I. and to pay fine of Rs. 100/-, in default of payment of fine to further undergo one month imprisonment. The substantive jail sentence of Kaniram are directed to run concurrently. Criminal Appeal No. 836/95 has been filed by the State challenging the acquittal of the accused-respondents Naryan, Mohan and Keshar under sections 138,302/149, and 307/149 of the Indian Penal Code. 2. Factual matrix as averred by the prosecution before the trial Court was that the complainant P. W. 8, Balram, brother of the deceased Babu, was serving as a driver and plying the bus. In Village Salkanpur on 10-6-1991 at 8.35 he was sitting on a driver seat of the bus. At that juncture Appellant No. 3 Kaniram with acquitted accused Mohan and Naryan reached there on a motorcycle. At the same moment deceased Babu, brother of complainant Balram, also reached on the bus stand. Acquitted accused Naryan and Appellant No. 3 Kaniram took out country-made pistol from their pockets and fired the same at deceased Babu. Deceased Babu sustained injuries on his chest by piercing of pellets, the injuries caused by firearm were bleeding. P. W. 8 Balram alighted from the bus to save his brother Babu but the Appellant No. 3 Kaniram also fired at him resulting into his fall on the ground. Deceased Babu sustained injuries on his chest by piercing of pellets, the injuries caused by firearm were bleeding. P. W. 8 Balram alighted from the bus to save his brother Babu but the Appellant No. 3 Kaniram also fired at him resulting into his fall on the ground. Deceased Babu tried to run away, but, obstructed by Mangilal (died during trial), Bhanwar, Prabulal (died during trial), Gabbu, Keshar Singh and Rajesh having weapons in their hands, came from opposite side and Appellant No. 3 Kaniram and acquitted accused Mohan and Naryan also attacked on Babulal, therefore, he ran away towards the Otla of Sajjanbai. All the accused persons chased and after surrounding him started beating by their respective weapons. Complainant Balram (P.W. 8) again tried rescue his brother whereon he was assaulted by accused Mangilal and the Appellant No. 2 Gabbu by Dhariya on his leg, head and both the shoulders. Accused persons fled away from the scene of occurrence on the understanding that they had died. Deceased Babu sustained injuries on his head, leg and chest. P.W. 4, Ramesh and P.W. 8, Balram, lifted the deceased Babu upto his house and left him there. It is stated that the accused persons assaulted the deceased Babu and his brother Balram, P.W. 8, on account of previous ill will. P.W. 8, Balram, was sent in an ambulance to Bhoj Hospital, Dhar, by Punam, Motilal, Devji and his maternal-grand mother where his report was recorded as Dehati Nalishi by P.W. 13, Investigating Officer, Sub-Inspector S. Balraj. On the basis of Dehati Nalishi a crime was registered at P. S. Nalchha, District Dhar. After preparation of inquest, Ex. P/9, the dead body of Babu was sent for post-mortem examination to Bhoj Hospital, Dhar, and the post-mortem was conducted by P.W. 11, Dr. Shridhar Batwe. The post-mortem report is Ex. P/8, P.W. 8, Complainant Balram was medically examined by P.W. 2, Dr. Upadhyaya, his medico legal certificate is Ex. P/2. His injuries were also x-rayed by P.W. 1, Dr. V.K. Bhandari. X-ray report is Ex. P/1 wherein fracture of left ulna and right clevical was found and some foreign matters were found in chest and shoulder. P/8, P.W. 8, Complainant Balram was medically examined by P.W. 2, Dr. Upadhyaya, his medico legal certificate is Ex. P/2. His injuries were also x-rayed by P.W. 1, Dr. V.K. Bhandari. X-ray report is Ex. P/1 wherein fracture of left ulna and right clevical was found and some foreign matters were found in chest and shoulder. The accused persons were arrested and on their disclosure statement under section 27 of the Evidence Act, from possession of the accused Naryan and Kaniram country made pistol were seized and from other accused persons Dhariya, blood stained empty cartridges and three caps, one pair of Chappal were seized and from the possession of Kaniram seizure of motor cycle was effected. After necessary investigation charge-sheet was filed by the police before the court below. 3. Appellants (in Criminal Appeal No. 701/95) and acquitted co-accused persons (in Criminal Appeal No. 836/95) pleaded not guilty. According to them they were falsely implicated on account of enmity. Therefore, they were tried and appellants Bhanwarlal, Gabbu and Kanriam have been convicted and sentenced as mentioned herein-above and the respondents (in Criminal Appeal No. 836/95 filed by the State) were acquitted from the charges. 4. We have heard learned counsel for the parties and also perused the entire record of the case carefully. 5. Learned Counsel for the convicted accused persons does not wish to challenge homicidal death of deceased Babu. Even otherwise in view of the medical evidence of P.W. 11, Dr. Shridhar Batwe, who conducted the postmortem of the deceased, the deceased suffered as many as 21 injuries caused by hard and sharp edged weapon except injuries Nos. 15 and 21 which were caused by hard and blunt object. On internal examination he found the fracture of left parietal and frontal bone, mastoid and maxilla bone, fractures of head of left hummers, left scapula bone, right radius and ulna bone, and complete dislocation of right wrist joint. In his opinion the deceased died due to haemorrhage and shock caused by serious injuries to brain. He proved the post-mortem report, Ex. P/31. 6. Learned Counsel for the convicted appellants has submitted that the statement of the eye-witnesses, P. W. 3, Radheshyam, P.W. 4, Ramesh, P.W. 5, Sultana, P.W. 8 Balram and P.W. 10, Prabhulal could not have been relied upon in view of the direct conflict with the medical evidence vis-a-vis the statement of each other. P/31. 6. Learned Counsel for the convicted appellants has submitted that the statement of the eye-witnesses, P. W. 3, Radheshyam, P.W. 4, Ramesh, P.W. 5, Sultana, P.W. 8 Balram and P.W. 10, Prabhulal could not have been relied upon in view of the direct conflict with the medical evidence vis-a-vis the statement of each other. The learned Counsel has also submitted that in view of the finding of the trial Court that the prosecution failed to prove sustaining of injuries by the star eye witness P.W. 8 Balram, the whole prosecution case is liable to be thrown away. To combat with the arguments of the learned counsel for the convicted accused persons and also in support of the State Appeal against acquittal of the respondents (in Criminal Appeal No. 836/95) mentioned hereinabove Shri Desai submitted that the incident had occurred in a broad daylight in a thickly populated locality of Village Salkanpur i.e. the bus stand of Village Salkanpur and the names of the eye-witnesses Ramesh, Prabhulal, Radheshyam are mentioned in Dehati Nalishi Ex. P/26, lodged by the eye witness P.W. 8 Balram, who himself has suffered number of grievous injuries caused by fire arm and hard and sharp edged weapons. The learned State Counsel has also submitted that the eye-witnesses examined by the prosecution including eye witness Balram and their presence on the scene of the occurrence could not be doubted. He has also submitted that on the basis of the statement of the eye witnesses co-accused Naryan, Mohan and Kesharsingh are also liable to be convicted. 7. We firstly consider the Criminal Appeal No. 701/95 filed by the three convicted accused persons namely appellants Bhanwarlal, Gabbu and Kaniram. The learned trial Court after detailed evaluation of the evidence of all the six eyewitnesses, has come to the conclusion in para 36 that on the person of the deceased Babu, medical expert P.W. 11, Dr. Shridhar Batwe did not find any injury caused by fire arm but his presence at the time of the incident when appellants the appellant Gabbu, Bhanwar and accused Mangilal reached on the spot and after surrounding him assaulted him by sharp edged weapons is amply proved. Therefore, the accused Kaniram was also held liable to be convicted for commission of murder of Babu with the help of section 34 of the Indian Penal Code. Therefore, the accused Kaniram was also held liable to be convicted for commission of murder of Babu with the help of section 34 of the Indian Penal Code. We do not find this reasoning and finding of the trial Court based on sound principle of appreciation of evidence, in a criminal appeal specially when specific overt act of appellant Kaniram of causing injury by fire-arm to the deceased is belied by the medical evidence to convict him with the aid of section 34 of the Indian Penal Code. The star prosecution witness P.W. 8, Balram, brother of the deceased, has specifically stated that Kaniram fired by a countrymade pistol and its bullet hit at the chest of the deceased causing wounds with blood oozing therefrom. In a case of Nachhettar Singh and Others v. The State of Punjab, AIR 1976 SC 951 in a similar situated the Apex Court has observed in Paragraph No. 15 as under :- A big question mark arises. How is it that 3 empty cartridges of 8 mm said to have been recovered from the place of occurrence were found by the expert to have been fired from Nachhattar's rifle and yet no rifle injury was found to have been caused on any of the victims although the rifle was used on two according to the First Information Report and on all the 3 according to the evidence in Court? There being no answer to this question mark, it could not but shake the foundation of the whole prosecution case and shake it to an irreparable extent. Principles of criminal Jurisprudence which govern the trial of criminal case in our country do not permit the ignoring of or brushing aside such a big jerk given to the prosecution evidence. Neither the trial Court nor the High Court was justified in law in brushing aside such a serious infirmity and coming to the conclusion that even if this part of the prosecution story was not correct, still all the three appellants had committed the crime in furtherance of their common intention. In such a situation if it is not safe to say that the death of Chhota Puri was caused only by the gun shots of Dalip Gir. In such a situation if it is not safe to say that the death of Chhota Puri was caused only by the gun shots of Dalip Gir. One could find all the appellants guilty with the aid of section 34 of the Penal Code for the three murders if the prosecution would have merely proved the participation in general of the persons armed with firearms in the commission of the crime. But it chosen to give the details of the story of assault with the different fire-arms by the appellants. It cannot escape the consequence when a vital party of the details is demonstrably found to be wrong. 8. Recently in the case of Tharan Kumar v. State of Union Territory of Chandigargh, (2003) 6 SCC 380 the Supreme Court has explained about appreciation of evidence. Contradictions, inconsistencies, exaggerations of embellishments - Conflict between ocular testimony and medical evidence but, while dealing with different situations the Supreme Court has held that when there is total absence of injuries which are normally caused by a particular weapon, it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. 9. In view of the aforesaid dictum of the Apex Court we are of the considered view that the conviction of the Appellant No. 3 Kaniram is not sustainable. So far as the conviction of the Appellant No. 1 Bhanwarlal and No. 2 Gabbu is concerned, all the eye witnesses i.e. P.W. 3 Radheshyam, P.W. 4, Ramesh, P.W. 5 Sultan, P.W. 8 Balram and P.W. 10 Prabhulal are consistent. The statement of the injured eye witness Balram, P.W. 8 is also duly corroborated by his report, Ex. P/26, as well as medical evidence of P.W. 11, Dr. Shridhar Batwe, who noted 18 incised wounds on the person of the deceased caused by hard and sharp edged weapon. The statement of the injured eye witness Balram, P.W. 8 is also duly corroborated by his report, Ex. P/26, as well as medical evidence of P.W. 11, Dr. Shridhar Batwe, who noted 18 incised wounds on the person of the deceased caused by hard and sharp edged weapon. Eye Witnesses have stated that both these appellants along with Mangilal (died during the course of the trial) were having iron made hard and sharp edged weapon and all the three assaulted the deceased, therefore, the conviction of these accused persons, is what precisely the learned trial Court has held after detailed appreciation and marshalling of statement of all the five eye witnesses and we are in full agreement with the trial Court regarding conviction and sentence imposed by the trial Court upon Appellants No. 1 and 2 Gabbu and Bhanwar. 10. In State Criminal Appeal No. 836/95 we are not finding any substance and acquittal of the respondents Naryan, Mohan and Keshar is liable to be upheld because about the overt act attributed to these respondents for causing injuries to the deceased as well as to injured witness P.W. 8 Balram are not consistent. Their statements are contradictory on material particulars to their case diary statements as well as to the statements of each other in Court. The learned trial Court has discussed this aspect in detail right from paragraph Nos. 13 to 36 of the impugned judgment and because of material contradictions, improvements and marshalling of statements of the eye witnesses regarding specific role played by the respondents Naryan, Mohan and Keshar and the testimony of eye witnesses. We have also thoroughly gone through the statement of all the witnesses, Dehati Nalishi Ex. P/26 and their case diary statements and found that the findings arrived at by the trial Court is properly and folly based on material available on record. The statement of star witness, P.W. 8, Balram, who sustained injuries in the same incident is at variance with his first information report, Ex. P/26, Dehati Nalishi. In Dehati Nalishi he has deposed that the Appellant No. 3 Kaniram fired by countrymade pistol and pellets of the pistol caused injury on his chest and shoulder but in Court he has changed his version and attributed this overt act to Naryan. P/26, Dehati Nalishi. In Dehati Nalishi he has deposed that the Appellant No. 3 Kaniram fired by countrymade pistol and pellets of the pistol caused injury on his chest and shoulder but in Court he has changed his version and attributed this overt act to Naryan. Similarly, the contractions are available regarding causing injury to him by Dhariya and because of direct conflict in the statement of the eye witnesses with court statement regarding the overt act attributed to the acquitted accused persons, the learned trial Court has given benefit of doubt to them. 11. The law is well settled regarding appreciation of evidence and interference in appeal against acquittal, if the view taken by the trial Court appears to be just and reasonable and another view is also possible then the judgment of acquittal cannot be interfered with, because the same can be substituted by the another view. Therefore, we are of the opinion that there is no substance in the State Appeal against acquittal. Hence the same is dismissed. 12. Before parting with the judgment it would be apposite to mention that the learned trial Court while recording the statement of the prosecution witnesses and when they were confronted with their case diary statements, the case diary statements were not marked as Exhibits. Only the case diary statement of P.W. 10 Prabhulal was marked as Ex. D/l. Case diary statement of P.W. 3, Radheshyam was also not exhibited by the scribe, the Investigating officer, P.W. 13, S. Balraj. The learned trial Court while recording the statement of the prosecution witnesses should have also mentioned after name and address of the witness name of the G. P. or A.G.P. who was conducting the prosecution case and examining the prosecution witnesses in Court in Hindi. It should be like this The learned trial Court as well as the A.G.P., who was conducting the prosecution case failed to take care when investigating officer was cross-examined by the defence in para 13 the investigating officer as stated that he did not record any statement of the witness Ramesh s/o Nanuram in this case. He further admitted the suggestion given by the defense that during investigation no eye witness named Ramesh s/o Nanuram came to him whereas the prosecution has cross-examined P.W. 4 Ramesh s/o Nanuram as an eye witness of the incident, the defence counsel has also examined this witness. He further admitted the suggestion given by the defense that during investigation no eye witness named Ramesh s/o Nanuram came to him whereas the prosecution has cross-examined P.W. 4 Ramesh s/o Nanuram as an eye witness of the incident, the defence counsel has also examined this witness. In cross examination in Para 5 this witness had stated that the police has recorded his statement and also brought on record material omissions. In the opinion of this Court this is a serious lapse on the part of A.G.P. as well as the trial Court. The trial Court is advised to be careful in future while recording proceedings and statement of the witnesses in murder trial where the question of life and death of accused is involved and question of bringing home the guilt of the culprit. 13. As a result of the discussion as aforesaid, Cri. A. No. 701/95 is partly allowed. Appellant No. 3 Kaniram s/o Prabhulal is not found guilty of the offences charged with. He is accordingly acquitted. The conviction and sentence of Appellants No. 1 Bhanwarlal and No. 2 Gabbu are hereby affirmed. Their appeal is dismissed. Appellant Kaniram is on bail. His bail bonds shall stand discharged. The amount of fine, if paid or realized from him shall be refunded to him. The Authorities be informed accordingly. Cri. A. No. 835/95 filed by the State against Naryan, Mohan and Keshar Singh is hereby dismissed. Let a copy of this judgment along with the record of the trial Court be sent to that Court.