JUDGMENT 1. - These two appeals have been filed by the accused appellants being aggrieved by the decision of the Court of learned Additional Sessions Judge, Raisinghnagar in Sessions Case No. 2/1985 dated 14.8.1985. One appeal has been filed by the accused appellant being aggrieved by the sentence and conviction and the other appeal has been filed by the State against the acquittal of the accused under Section 302/34. 2. The prosecution was initiated on the basis of a report lodged at Police Station, Rai Singh Nagar on 30.10.1984 by Vijay Kumar against three persons Prithvi, Chandu and Ram Kumar at 11 P.M. alleging that at about dusk on the fateful day the three accused appellant came out of the cotton crops and fired at the deceased Shiv Kumar, who resides at Chak 53 NP. Vijay Kumar informed that while they were checking the water flow in water course then a fire was made by Prithvi and other two accused persons caused injuries to deceased. The firearm used was a pistol. Having seen this, Krishnalal went to the house of the deceased and informed his wife Savitri. Savitri then visited the scene of occurrence and sent Krishna to 'Phojiwala' to summon Vijay Kumar then Vijay Kumar and Krishna went to the Police Station to lodge the report. 3. On such information, investigation was initiated, after investigation charge sheet was filed against the accused Prithvi Ram and Ram Kumar. Chandu being child was proceeded in the children Court. After filing of the charge-sheet, the same was made over to the trial Court. The trial Court framed the charges against the accused appellants. The accused appellant Prithvi Ram was charged under Section 302 I.P.C. and Section 27 Arms Act and accused appellant Ram Kumar was charged under Section 302 I.P.C. 4. The accused appellants denied the charges and claimed trial. At the trial 10 witnesses were examined, out of which two witnesses PW-2 Krishna Lal and PW-3 Mahendra were eye witnesses. PW-4 Vijay Kumar the complainant and PW-8 Savitri was the wife of the deceased who visited the scene of occurrence soon after she was informed of the incident by Krishna Lal. Rest of the witnesses were witnesses of investigation. The accused were examined under Section 313 Cr.P.C. wherein they denied the implication and claimed trial. PW-4 Vijay Kumar the complainant and PW-8 Savitri was the wife of the deceased who visited the scene of occurrence soon after she was informed of the incident by Krishna Lal. Rest of the witnesses were witnesses of investigation. The accused were examined under Section 313 Cr.P.C. wherein they denied the implication and claimed trial. The trial Court believed the testimony of two eye witnesses and have placed reliance on this testimony. The trial Court was of the opinion that injury as inflicted do not come in the definition of Section 302 and, therefore, the accused Prithvi Lal was convicted under Section 304-II I.P.C. and sentenced to three years R.I. and under Section 27 of the Arms Act sentenced to six months' R.I. and fine of Rs. 100/-. Ram Kumar was acquitted of the charges under Section 302 I.P.C. 5. Learned counsel for the appellants submitted that two eye witnesses which have been produced are not the witnesses of worth. It would be in correct to say that eye witness PW-3 Mahendra and PW-2 Krishna Lal were an eye witnesses. Part of the statement of witness PW-2 has been brought to the notice of the Court which is quoted here for ready reference : " brus esa pUnq o jkedqekj us dgk fd xksyh ekj ns[krk D;k gSA mlds ckn i`Foh us xksyh ekj nhA i`Foh us f'kodqekj ds xksyh ekj nhA mlds nk;sa xksM+s ij xksyh yxhA xksyh yxus ls f'kodqekj uhps fxj x;kA mlds ckn f'kodqekj dks uhps fxjs gq;s ds pUnq o jkedqekj dks ihVus yxsA " 6. In the description of this statement which finds place in the cross examination of this witness is re-produced as under : " ?kVukLFky ls f'kodqekj dk ?kj djhc <+kbZ eqjCck nwj gSA eqyfteku ykfB;ksa ls ekjus yxs rc eSa ogka ls Hkkx iM+k Fkk vkSj mlds ckn Qk;j gqvk FkkA eSa FkksM+h lh gh nwj Hkkxk Fkk fd Qk;j gks x;k FkkA dqy nks Qk;j gq;s FksA " 7. According to this witness he first saw the fire being made and then the other two accused persons gave beating and in cross examination he says that the deceased was first beaten by sticks and then fire shot was made. According to this witness he first saw the fire being made and then the other two accused persons gave beating and in cross examination he says that the deceased was first beaten by sticks and then fire shot was made. If his statement in cross examination is given any reliance then according to that he had ran away when the accused started giving beating to the deceased and he only heard the gun shot reports, this takes away his stance as an eye witness because in his examination in chief his version was that he first saw the deceased being inflicted gun shot and then stick beating was made whereas in cross examination he reverses the sequence and this goes a long way beyond from the above mentioned description. 8. The witness states that after having scene the occurrence he had gone to the house of the deceased and informed her wife about the incident and went home. 'This is an unnatural conduct and he cannot, therefore, be believed. Further he was the witness who had gone alongwith Vijay Kumar to lodge the F.I.R. and he is also signatory of the F.I.R. The signatories of the F.I.R. confirm to the correctness of facts as given in F.I.R. but in the F.I.R. as lodged by Vijay Kumar does not make a mention that after Prithvi fired at Shiv Kumar any beating was given to the deceased. This is a great lapse because if beating by stick is not contained in the F.I.R. then the two versions given by this witness goes a long way. 9. Another improbable stance of this witness is that he had gone to 'Phojiwala' to call Vijay Kumar from the scene of occurrence. When he travels to 'Phojiwala'. on his way the Police Station falls and it cannot be expected that he would not have intimated the Police because he was an eye witness. Presence of this witness at the scene of occurrence is a doubtful proposition because he owns no land there, he only states that he has taken land on contract from one Gopal Kuar. Gopal Kaur has not been produced. Non production of Gopal Kaur dilutes the proposition to the extent wherein this witness claims that he had a land there. Presence of this witness at the scene of occurrence is a doubtful proposition because he owns no land there, he only states that he has taken land on contract from one Gopal Kuar. Gopal Kaur has not been produced. Non production of Gopal Kaur dilutes the proposition to the extent wherein this witness claims that he had a land there. Similarly learned counsel for the appellants submitted that PW-3 Mahendra again is a witness who cannot be considered to be an eye witness because he only narrates the crux of the prosecution story that Shiv Kumar was fired by Prithvi and when he fell the other accused persons gave beating by sticks. 10. According to Shiv Kumar this witness was helping him in irrigation wherein this witness claims that he also owns land being taken by him from Gopal Kaur which is not a case of Krishna Lal. According to Krishna Lal PW-3 Mahendra was only to help him but Mahendra claims that he had his own field for cultivation having being taken on contract from Gopal Kaur. When questioned, he refused to confirm that he had any writing of the contract, Gridvri and water slips in his name. Further this witness shows a conduct of the nature where he states that from the scene of occurrence he went home and did not narrate the story to any of the witnesses. This is an improbable conduct that he did not inform the incident to anybody in the family of the deceased and to anyone in the village. Further this witness contradicts PW-2 Krishna Lal about the number of fires. According to him only one shot was fired, according to PW-2 Krishna Lal, two shots of the fire and according to F.I.R. number of shots were only one, thus, there being contradiction in between two and three the numbers of shots and not being exactly deposed by the witness shows that none of them was present at the time of occurrence. 11. In another details also the story as given by this witness do not confirm the prosecution case. 11. In another details also the story as given by this witness do not confirm the prosecution case. PW-8 the another witness the wife of the deceased who was informed by PW-2 Krishna Lal soon after the occurrence states that she was informed by Krishna Lal and was confronted of the three accused persons on her way wherein an extra judicial confession alleged to has been made to her by the three accused persons but Vijay Kumar who had gone to lodge the report do not incorporate this fact in the F.I.R. Interestingly after Krishnalal informed her she went to the scene of occurrence and Krislunalal did not accompany her to the scene of occurrence she had to search out Krishnalal after visiting the scene of occurrence. This is an unnatural conduct of both the witnesses because she would have requested Krishna to accompany her to the scene of occurrence if Krishna was available to go to get Vijay Kumar for lodging the F.I.R. then certainly there was an understanding in between the lady and Krishna and she would have requested Krishna to accompany her, having not accompanied it is only established that by time she went to the seen of occurrence, Krishnalal was not there and for that reason nobody knew who were the assailants and the case has been made up to implicate the accused appellants. 12. Thus, both the eye-witnesses as alleged are not the witness of truth and in that view of the matter, the case is not made out against the accused appellants and they are entitled to be acquitted of the charges levelled against them. Learned counsel also submitted that the basic story of two eye witnesses is not worth reliable and convictions as ordered by the trial Court is not liable to be sustained and it would not be correct that the State appeal be given any merit and that deserves to be dismissed and appeal of the accused appellant Prithvi Rain deserves to be accepted. 13. Per contra, learned Public Prosecutor submitted that it is a case where two eye witnesses are available to support the prosecution case. There was animus in between the parties and that made a reasons to assault the deceased. 13. Per contra, learned Public Prosecutor submitted that it is a case where two eye witnesses are available to support the prosecution case. There was animus in between the parties and that made a reasons to assault the deceased. The number of injuries on the persons of the deceased indicated that weapon was not used more than one time thereby indicating that not only the fire arm was used, stick was also used and that both the fire arms are established to have been used the State appeal therefore, deserves to be accepted and the acquittal of Ram Kumar deserves to be set aside and Prithvi Kumar should be convicted under Section 302 I.P.C. 14. We have heard learned counsel for the parties and had have given our thoughtful consideration. The statement of eye witnesses PW-2 Krishnalal and PW-3 Mahendra are required to be scrutinised with care and caution. The statement of PW-2 Krishnalal has to be judged in the background that soon after informing the wife of the deceased he went home. If he was the witness of occurrence naturally he would have rendered his services by remaining present with the wife while she visited the scene of occurrence. Having informed he left it, weaken the reliability of his statement. Then this witness speaks about two gun shots which is not a case of the prosecution none of the other piece of evidence is available to support this count. He discredits himself by saying that he had seen the gun shots whereas taking summer sault he has deposed that in his cross examination that he ran away when the beatings started by sticks and only heard gun shots reports. This statement of this witness takes out his colour as an eye witness. 15. He was signatory of the F.I.R., in F.I.R. beatings by stick is not mentioned. Thus, the beatings by stick having not been deposed in cross examination and gun shots having only heard and statement that he ran away soon after the beatings by stick started, we cannot put this witness in the category of eye witness who is worthy relative. This witness, has not regard for truth and charges his version at will. 16. In view of the aforesaid discussion, we are not prepared to accept that this witness had witnessed the occurrence. 17. This witness, has not regard for truth and charges his version at will. 16. In view of the aforesaid discussion, we are not prepared to accept that this witness had witnessed the occurrence. 17. As regards PW-3 Mahendra his narration of facts being in contradiction with PW-1 in as much as he speaks about two gun shots report. He has failed t6 exaggerate the participation of the accused in his examination in chief and his conduct of not informing anybody in the village or to the family members of the deceased clearly brings out him in the category of not reliable. 18. When the testimony of two eye witnesses becomes doubtful we do not thing that any other piece of evidence is available to sustain the conviction of the accused as recorded by the trial Court. It appears to be a blind murder. The witnesses came to know of it when they saw the deceased they have tried to construct a story by placing two witnesses as eye witnesses who in their narration have discarded themselves by not corroborating each other. An infirm witness cannot corroborate an another infirm witness. There is no independent corroboration available on record. The motive as alleged by the prosecution is not established. The reasons for presence of this witness on the scene of occurrence is their position as contractor of the land owned by Gopal Kaur. Copal Kaur having not being produced, being position is not confirmed. 19. The recoveries as made from the accused Prithvi also not inspiring. Therefore, the case under Section 27 of the Arms Act also does not stance made out beyond reasonable doubt as the recoveries have been made in the fashion which do not conform the Code of Criminal Procedure. 20. In view of the aforesaid, we feel that prosecution case deserved to be discarded. The accused persons are liable to be given benefit of doubt. 21. In the result, we allow the appeal of the accused Prithvi and set aside his conviction and sentence and so also dismiss the appeal of the State against acquittal of Ram Kumar.Appeal allowed. *******