JUDGMENT R.R. Prasad, J. 1. Shankar Mahto and Ramsundar Mahto, who are appellant Nos. 1 and 2, were arrayed, as A-2 and A-l before the trial court. In this judgment, the appellants will be referred as A-l and A-2, in the same order, as they were arrayed before the trial judge. 2. 2nd accused was charged under Section 302 IPC as well as 27 of the Arms Act. The 1st accused, who is the father of the 2nd accused was charged under Section 302/34 IPC and also under Section 302/109 IPC. The trial judge while finding the 2nd appellant guilty under Section 302 IPC, sentenced him to undergo rigorous imprisonment for life . He was sentenced to three years rigorous imprisonment under Section 27 of the Arms Act. The 1st accused, Ramsundar Mahto, was convicted under Section 302 read with Section 109 IPC, for which he was sentenced to imprisonment for life. The accused, Shankar Mahto(A-2), was also directed to pay a fine of Rs. 20,000/- and in default of payment of fine, he was further directed to undergo simple imprisonment for a period of two years. The above appeal is against the said conviction and sentence. 3. The 1st accused, Ramsunder Mahto, is the father of the 2nd accused, Shankar Mahto. The deceased, Dukhan Mahto, is the brother of the 1st accused, Ramsundar Mahto. PW-1, Jalindar Mahto and PW-7, Keshra Mahto, are the sons of the deceased, Dukhan Mahto. PW-4, Fulchand Mahto, is the son-in-law of the deceased. The deceased wanted to perform the marriage of his grand daughter, Kiran Kumari, after selling his share of land. On account of the above, quarrel arose between the accused, Ramsundar Mahto and his brother, the deceased, Dukhan Mahto. On the morning of 24.2.1997, the 1st accused and the deceased quarreled with each other. This is said to be the motive of the occurrence, which took place at 8.00 p.m. on 24.2.1997. On 24.2.1997 at 8.00 p.m. the 1st accused accompanied by the 2nd accused met the deceased and questioned him. There was exchange of words between the parties. At that time, the 2nd accused, Shankar Mahto, took a pistol and shot at the deceased . The deceased fell down and died. This was witnessed by PW-1, Jalindar Mahto, PW-2, Md. Sharif Ansari, PW-3, Jai Ram Mahto, PW-4, Fulchand Mahto and PW-7, Keshara Mahto. There was exchange of words between the parties. At that time, the 2nd accused, Shankar Mahto, took a pistol and shot at the deceased . The deceased fell down and died. This was witnessed by PW-1, Jalindar Mahto, PW-2, Md. Sharif Ansari, PW-3, Jai Ram Mahto, PW-4, Fulchand Mahto and PW-7, Keshara Mahto. Fardbayan, Ext.3, was given by PW-7 at the police station at 10.45 P.M., on the basis of which a crime was registered under Ext.4. The Investigation was taken up by Niranjan Kumar Ghosh, who was examined as PW-9. He, on taking up the investigation of the crime, examined witnesses at the time of inquest and prepared inquest report, Ext.5. After the inquest, the dead body was sent to the hospital with a requisition for autopsy. 4. On receipt of the requisition and the dead body, PW-8, Dr. Ram Sewak Sahu, conducted autopsy on the dead body of Dukhan Mahto . He found the following injuries : INJURY: (Fire arm injury) Wound of entrance 2x1 cm on the upper part of chest in the middle line with abraded margin ; Projectile passes through sternum; arch of aorta and entered into left lung from where a bullet has been recovered from the lung. The track of the wound is contused and lacerated with present of blood and blood clot in the left thoracic cavity. Abrasion: 4x 2 cm left arm front middle part. The doctor issued Ext.2, the post mortem certificate, with his opinion that the injury No. 2, abrasion, could have been caused by hard and blunt substance and that the death is on account of fire arm injury, such as pistol. 5. After the completion of investigation, final report was filed and the appellants denied the circumstances, put against them under Section 313 of the Code of Criminal Procedure. 6. The learned Counsel appearing for the appellants submits that the trial court erred in convicting the 1st accused, Ramsundar Mahto, under Section 302/109 of the Indian Penal Code, since the prosecution did not attribute any overt act to him when the crime was registered as his name was not even mentioned as an accused at the time when complaint, Ext.3, was given by PW-7. He submits that the 2nd accused Shankar Manto is entitled for the benefit of Exception-4 to Section 300 of the Indian Penal code, since the occurrence had taken place during a quarrel between the deceased and the 1st accused Ramsundar Mahto. 6. We have heard Mrs C. Prabha, learned A.P.P., appearing for the State, on the above contentions. 7. It is not in dispute that Dukhan Mahto died on account of gun shot injury. The evidence of the doctor(PW-8) and the post mortem certificate conclusively show that Dukhan Mahto died on account of the gun shot injury. 8. The prosecution before the trial court examined PWs 1 to 4 and 7 as witness to the occurrence and out of them PW-1, PW-4 and PW-7 are related to the deceased. PWs-2 and 3 are independent witness. It is their evidence that at about 8.00 p.m. on 24.2.1997 the deceased and accused quarrel with each other as regards the land which the deceased wanted to sell to perform the marriage of his grand daughter, Kiran Kumari. It is their further evidence that while quarrel was going on, the 1st accused asked the 2nd accused, Shankar Mahto to kill the deceased and that the 2nd accused thereafter shot the deceased with a pistol. 9. We have perused the evidence of the eye witnesses very carefully. It is to be remembered that PWs-2 and 3 are independent witnesses and had no reason to give false evidence against the accused. They have stated that the 2nd accused, Shankar Mahto shot the deceased with pistol and that the deceased died on account of the said injury. On going through the evidence, which is supported by the medical evidence, we accept the prosecution version that the 2nd accused, Shankar Mahto, shot at the deceased and caused fatal injury to him. 10. The contention of the counsel that the 2nd accused, Shankar Mahto, is entitled for the benefit of Exception-4 to Section 300 IPC, cannot be accepted. It is to be remembered that there was a quarrel on the morning of 24.2.1997 between the deceased and the 1st accused at about 6.00 - 7.00 A.M.. Once again the deceased and the 1st accused, Ramsundar Mahto quarreled with each other at about 8.00 p.m. At that time, the 2nd accused, Shankar Mahto, shot the deceased with the pistol. It is to be remembered that there was a quarrel on the morning of 24.2.1997 between the deceased and the 1st accused at about 6.00 - 7.00 A.M.. Once again the deceased and the 1st accused, Ramsundar Mahto quarreled with each other at about 8.00 p.m. At that time, the 2nd accused, Shankar Mahto, shot the deceased with the pistol. We are unable to understand as to how the wordy quarrel between the two brothers will be a reason for the 2nd accused, Shankar Mahto, to use a fire arm and kill his uncle, when he was not a party of that quarrel. We, therefore, do not find any justification for the 2nd accused, Shankar Mahto, to have used a fire arm for killing the deceased. We, therefore, reject the argument of the counsel and uphold the conviction of the accused-appellant, Shankar Mahto, under Section 302 IPC as well as 27 of the Arms Act. 11. We will now take up the case of the 1st accused, Ramsundar Mahto. Though, it is the case of the prosecution that Ramsundar Mahto abetted the 2nd accused to kill the deceased, no such allegation was made in the earliest document, Ext.3, given by PW-7. The 1st accused came to be implicated with the crime only during the course of investigation when the witnesses added his name by stating that he was the person who abetted. If the 1st accused abetted the 2nd accused to shoot the deceased and kill him, then the said fact would have been upper most in the mind of PW-7 when he gave Ext.3, the Fardbayan. He did not make any such allegation against the 1st accused. 12. In the above circumstances, we find it unsafe to accept the prosecution case to hold that he abetted his son, Shankar Mahto, to kill the deceased. We, in the above circumstances, give the benefit of doubt to the 1st accused, Ramsundar Mahto (2nd appellant in the appeal) and acquit him under Section 302 read with 109 of the Indian Penal Code. 13. In the result, the conviction of the appellant No. 1, Shankar Mahto, and the consequence sentence imposed upon him are confirmed. The conviction and consequence sentence imposed against the appellant No. 2, Ramsundar Mahto, are, hereby, set aside. The appellant No. 2, Ramsundar Mahto is on bail; he is discharged from the liability of the bail bonds.