JUDGMENT (per Dongaonkar, J.) 1. The appellant, State of Maharashtra, seeks to challenge the acquittal of the respondents, for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code and of Respondent No. 3 for the offence under Section 28 of Indian Arms Act, rendered in Sessions trial No. 36/87 by the Additional Sessions Judge, Bhandara, vide his judgment dated 29th May, 1989. 2. The facts leading to the prosecution of the respondents, as alleged by the prosecution, were that the Respondent No.1/Accused No. 1 Mathuraprasad, Respondent No. 2/Accused No. 2 Kamlakant and Respondent No. 3/ Accused No. 3 Rajnarayan are related to each other. Respondent No. 2 Kamlakant is the son of sister of Respondent No. 1 Mathuraprasad whereas Respondent No. 3 Rajnarayan is the son-in-law of Respondent No. 1 Mathuraprasad. Respondent No. 1 Mathuraprasad used to sell liquor near Sindhi Tree near Hanuman Tank at Tumsar. Deceased Guddu and Deceased Jagdish were real brothers. Deceased Guddu was also dealing in the sale of liquor. Respondent No. 1 Mathuraprasad on one side and deceased Guddu & deceased Jagdish on the other side had enmity on account of sale of illicit liquor. The house of deceased Guddu and that of Respondent No. 1 Mathuraprasad were adjacent to each other. At the time of Diwali of 1986, there was quarrel between deceased Guddu and Respondent No. 1 Mathuraprasad. It is alleged that Respondent No. 1 Mathuraprasad had threatened him of destruction of whole of his family. This quarrel was pacified by the brother of deceased Guddu; deceased Jagdish. It is alleged that Respondent No. 2 Kamlakant was residing with Respondent No. 1 Mathuraprasad since one & half year prior to the incident. About 10-15 days prior to the incident Respondent No. 3 Rajnarayan had come from Allahabad to reside with Respondent No. 1 Mathuraprasad. On 11.3.1987 in the morning at about 8 . 8.30 a.m. Manikchand Ilame had been on his bicycle in the market. When he was returning at about 9.30 a.m., deceased Guddu had met him and they both started towards the house of deceased Guddu near Railway crossing. Manikchand told deceased Guddu to give some liquor. At that time Purushottam (P.W.3) and one Arun Madavi came on bicycle and deceased Guddu had given them call. He asked them to join for liquor to the den of Respondent No. 1 Mathuraprasad. Manikchand told deceased Guddu to give some liquor. At that time Purushottam (P.W.3) and one Arun Madavi came on bicycle and deceased Guddu had given them call. He asked them to join for liquor to the den of Respondent No. 1 Mathuraprasad. All of them went to him. Respondent No. 1 Mathuraprasad was present near the Sindhi tree. The servant of Respondent No. 1 Mathuraprasad by name Kailash was also there. P.W.1 Dashrath and P.W.4 Atamkhan had also come there. Respondent No. 1 Mathuraprasad was selling liquor near the said Sindhi tree. Deceased Guddu demanded the liquor. It is alleged that deceased Guddu told Respondent No. 1 Mathuraprasad that his 10th standard examination was going on, so he wanted a dabaki (container) containing liquor. Respondent No. 1 Mathuraprasad told him that he would give the same after about an hour. But deceased Guddu wanted the same at that very moment, so quarrel arose between them. It is alleged that deceased Guddu had rushed with stick to beat Respondent No. 1 Mathuraprasad. At that time Respondent No. 1 Mathuraprasad went towards his house. It may be stated that it is the allegation of the prosecution that at that time deceased Guddu was handicapped because of fracture of his leg. It is further alleged that P.W.2 Hiralal had come to the house of deceased Jagdish to take the clothes from deceased Jagdish to the laundry. Respondent No. 1 Mathuraprasad had gone to his house. Thereafter all the three respondents came from the house near parapet wall. There was a gun in the hands of Respondent No. 3 Rajnarayan. He fired the same at deceased Guddu. After hearing the sound of firing, deceased Jagdish rushed towards him, from the side of the house of one Shri Shukla. Respondent No. 3 Rajnarayan then fired shots with gun at the said Jagdish. All this incident was seen by P.W.2 Hiralal, P.W.3 Purushottam, P.W.4 Atamkhan and P.W. 5 Nandu. Deceased Guddu and deceased Jagdish fell down. P.W.2 Hiralal allegedly attempted to give water to deceased Guddu, but, he was dead. Thereafter P.W.3 Purushottam and one Arun Madavi ran away from the spot as they were afraid. It is alleged that Premkrushna Shukla had also witnessed the incident. Thereafter the respondents had gone away. They had gone to the Police Station. 3. P.W.2 Hiralal allegedly attempted to give water to deceased Guddu, but, he was dead. Thereafter P.W.3 Purushottam and one Arun Madavi ran away from the spot as they were afraid. It is alleged that Premkrushna Shukla had also witnessed the incident. Thereafter the respondents had gone away. They had gone to the Police Station. 3. At about 11.30 a.m., P.W.4 Atamkhan came to Police Station Tumsar and lodged oral report there. It was reduced into writing by P.W.17, P.I. Pande. The relevant report is at Exh. 61 and F.I.R. in Printed Form is at Exh. 62. Offence under Section 302 r/w Section 34 of Indian Penal Code bearing Crime No. 52/87 was registered. It is alleged that after some time the respondents had come to the Police Station, as stated above, and Respondent No. 3 Rajnarayan had a gun with him. P.W.17, P.I. Pande directed the seizure of the said gun to P.S.I. Gaikwad. Thereafter he went to the spot of incident. It is alleged that P.S.I. Gaikwad seized a gun and belt having packets to keep cartridges from Respondent No. 3 Rajnarayan as per seizure memo (Exh. 73) in presence of panchas. He arrested all the accused persons as per arrest panchanama (Exh. 52). P.W.17, P.I. Pande, who had gone to the spot, noticed dead bodies of deceased Guddu and deceased Jagdish. In presence of panchas, inquest panchanamas (Exh. 105 and Exh. 107) were prepared. Some articles were also seized from the spot as per seizure memo (Exh.51). Spot panchanama as per Exh. 84 was prepared. The dead bodies were sent to the Medical Officer for post mortem examination. A plastic chappal lying at about 45 ft. from the spot, so also gunny bags near the earthern pot were also seized. Blood mixed soil and simple soil were seized. P.W.17 P.I. Pande took the search of the house of Respondent No. 1 Mathuraprasad from where one cap of Khaki colour, one steel whistle, one plastic cover, one gun license No. 1943-II of Respondent No. 3 Rajnarayan along with other articles were seized. Some articles brought from the person of the deceased Guddu were also seized including pellets found in the injuries of deceased Guddu. Besides this, some articles and deformed pellets extracted from the person of deceased Jagdish were also seized. The respondents were sent for medical examination and also for taking their blood samples. 4. Some articles brought from the person of the deceased Guddu were also seized including pellets found in the injuries of deceased Guddu. Besides this, some articles and deformed pellets extracted from the person of deceased Jagdish were also seized. The respondents were sent for medical examination and also for taking their blood samples. 4. During the course of the investigation, P.M. notes were received being Exh. 78 & 79. It was also reported that deceased have suffered death due to shock and hemorrhage as a result of fire arms injuries mentioned in the respective post mortem notes. During the investigation, P.S.I. Gaikwad along with respondents were sent to Allahabad for inquiry. There the office of the Collector had issued the extract of the license of gun of Respondent No. 3 Rajnarayan bearing No. SBBL/7150/83. The details regarding purchase of cartridges by Respondent No. 3 Rajnarayan were also collected. The relevant documents are at Exh. 87 and Exh. 90. During investigation, seized gun, pellets and cartridges were sent for the opinion of the Ballistic Expert and Chemical Analyzer. Shri Ramteke, Assistant Chemical Analyzer has been examined as P.W.16 who had given his report at Exh. 95. P.W.15 Shri Rao, Assistant Chemical Analyzer had examined the clothes of the deceased which had holes due to fire. He submitted his report at Exh. 93. The statements of the witnesses were recorded during the investigation. After completion of the investigation, it was found that Respondent No. 1 Mathuraprasad and Respondent No. 2 Kamalkant had instigated Respondent No. 3 Rajnarayan to open fire by his gun at deceased Guddu and then at deceased Jagdish, which had caused their instantaneous deaths. It was also found that Respondent No. 3 Rajnarayan had used his licensed gun for illegal purpose. So the respondents were charge sheeted for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code and respondent No. 3, in addition, was charge sheeted for the offence punishable under Section 28 of the Indian Arms Act in the Court of Judicial Magistrate, First Class, Bhandara. 5. On committal of the case to the Court of Sessions bearing Sessions trial No. 36/87, the learned Additional Sessions Judge framed charge for the said offences against the respondents. The respondents pleaded not guilty to the same. Their defence is that of total denial and false implication. 5. On committal of the case to the Court of Sessions bearing Sessions trial No. 36/87, the learned Additional Sessions Judge framed charge for the said offences against the respondents. The respondents pleaded not guilty to the same. Their defence is that of total denial and false implication. Their defence, in short, is that there was altercations between Respondent No.1 Mathuraprasad and deceased Guddu. Deceased Guddu had threatened him, so he had been to the police station to lodge report against deceased Guddu. It is alleged that deceased Guddu, deceased Jagdish and all the P.Ws examined in the case as eyewitnesses are having criminal background. They have many criminal cases against them and they have deposed against these respondents falsely at the instance of police. Respondent No. 3 Rajnarayan has pleaded that he had a licensed gun and the same was seized from his house at Kashiya Purab (U.P) along with 10 live cartridges. According to him, he did not fire shots from that gun at the deceased and he did not kill them. His specific case is that, the gun and the live cartridges were seized from his house at Kashiya Purab (U.P) and the live cartridges were fired by the Police and a show of seizure of empty cartridges and pellets was engineered to implicate these respondents falsely. Therefore, the case of the respondents is of total denial and deceased Guddu being the aggressor. It may not be out of place here to state it is the defence of the respondents further that it was P.W 2 Hiralal who had killed deceased Guddu and deceased Jagdish. 6. Learned trial Judge after recording the evidence of witnesses including that of aforesaid eye witnesses, came to conclusion that the prosecution case is riddled with so many discrepancies. The prosecution has failed to establish that the eye witnesses examined by it are reliable witnesses. There are material contradictions in their evidence, so also omissions and therefore, their evidence is totally untrustworthy. He has further pointed out that there is no possibility of these eyewitnesses seeing the actual incident. There is no possibility of these witnesses being on the spot at the relevant time. He has further found that there is discrepancy as regards number of the seized gun and the gun which are sent for forensic opinion. He has further pointed out that there is no possibility of these eyewitnesses seeing the actual incident. There is no possibility of these witnesses being on the spot at the relevant time. He has further found that there is discrepancy as regards number of the seized gun and the gun which are sent for forensic opinion. He has considered the defence evidence to hold that the same is reliable and it makes the prosecution case doubtful. Further, according to him, there is discrepancy as regards the identification of Respondent No. 3 and the mention of his name in F.I.R. by P.W 4 Atamkhan while lodging the report. He has also held that in this case the independent witnesses could have been available and they are not examined. So, the evidence of eye witnesses examined by the prosecution cannot be considered as an evidence, which can be used for basing the conviction of the respondents. Apart from this, according to him, as the gun powder residue and blackening were found on the periphery of the clothes and bodies of the deceased, it would be a case of deceased being shot from the powder range, which is not the case of the prosecution, as according to the prosecution, Respondent No. 3 had fired shots from a considerable distance i.e. at about 40 to 45 feet. He also found that as the burnt edges of the wound showed that firing should have been only from .some inches.. It was not proved that Respondent No. 3 had caused these fatal assaults. After considering the case of the prosecution, the learned trial Judge came to the conclusion that the prosecution has failed to establish its case beyond reasonable doubts. Though the deaths of deceased Guddu and deceased Jagdish were found to be homicidal, he found that the respondents cannot be held guilty for the offences charged and therefore, he rendered the judgment of acquittal of the respondents which is challenged in this appeal. 7. Learned Additional Public Prosecutor for the appellant State by taking us through the evidence of the eye witnesses, contended that the core of the prosecution evidence lead through eye witnesses is clearly reliable. According to him, the perversity in the judgment impugned in this appeal is apparent as the learned trial judge has opined that the fire was from the front side of the deceased. According to him, the perversity in the judgment impugned in this appeal is apparent as the learned trial judge has opined that the fire was from the front side of the deceased. He has also contended that the learned trial judge has placed reliance on the defence evidence which was not at all warranted in the present case. He has also contended that though the eye witnesses had criminal background, their evidence cannot be discarded only on that count. According to him, when seizure of the gun immediately after incident was established from the Respondent No. 3 Rajnarayan, there was a clear case of his implication in the offence under Section 302 of Indian Penal Code and for the offence under Section 28 of the Arms Act. He also submitted that though there is reference as regards gun on the record, as single barrel .DBBL. gun, this discrepancy is not fatal as seizure of the same from Respondent No. 3 is clearly established. According to him, the conduct of the respondents in visiting the police station immediately after the incident shows their implication. As the deceased had died of homicidal deaths and they died due to shots fired from the gun, which is established to be of Respondent No. 3 Rajnarayan, the respondents need to be held guilty of the offence punishable under Section 302 r/w Sec. 34 of the Indian Penal Code. In any case, according to him, even if it is assumed for a moment that the case against Respondent Nos. 1 & 2 is not established beyond doubts, there is no escape for Respondent No. 3 Rajnarayan from the offences charged. In short, he contends that the judgment of the learned trial judge is perverse to the record, he should not have given much weightage to the defence evidence led by the defence and also should have considered the evidence of eye witnesses reliable to hold at least Respondent No.3 Rajnarayan guilty of the offence punishable under Section 302 of Indian Penal Code. As such, he has submitted that the judgment of the learned trial Judge should be quashed and set aside and the Respondent No. 3 Rajnarayan at the least should be held guilty of the offence under Section 302 of the Indian Penal Code, by allowing this appeal. 8. As such, he has submitted that the judgment of the learned trial Judge should be quashed and set aside and the Respondent No. 3 Rajnarayan at the least should be held guilty of the offence under Section 302 of the Indian Penal Code, by allowing this appeal. 8. He has relied on the observations of the Apex Court in AIR 1977 SC 349 [Kartar Singh vs. State of Punjab], wherein the Apex Court has observed in Para 13, thus .13. Our attention has been invited to the evidence regarding the recovery of the fire arms, and we have examined it carefully. It has not been disputed that Mukund Singh was arrested on January 6, 1972, and was found in possession of single barrel 12 bore gun Ex.P. 22. Malkiat Singh was arrested on the same day and was found in possession of double barrel 12 bore gun Ex.P.23 for which he held a license. Appellant Kartar Singh was arrested on January 7, 1972 and he was then in possession of double barrel 12 bore gun Ex.P. 20 for which he held a license. Darshan Singh (P.W.3) was arrested on January 10, 1972 and was found in possession of rifle Exh. P. 18 for which he held a license. The aforesaid guns Exs. P.23, P.22, P.20 and P.18 were seized by the investigating officer, and were sealed. They were delivered at the Forensic Science Laboratory, Chandigarh, on February 3, 1972. J.K.Sinha (P.W.14) Assistant Director of the Forensic Science Laboratory, Chandigarh, has proved the delivery of the fired cartridge cases and the rifles in sealed condition, and he has stated that after firing test cartridges through the guns it was found that one of the recovered fired cartridge cases had been fired from Mukund Singh's gun Ex. P.22, four from Malkiat Singh's gun Ex.P.23 and four from Kartar Singh's gun Ex.P.20. He has also stated that the two brass fired cartridge cases had been fired from Darshan Singh's gun Ex. P.18. The witness has stated further that he came to the conclusion that they could not have been fired through any other fire arms because every firing pin, firing pin scrape and breach face mark has its own individuality. He has also stated that the two brass fired cartridge cases had been fired from Darshan Singh's gun Ex. P.18. The witness has stated further that he came to the conclusion that they could not have been fired through any other fire arms because every firing pin, firing pin scrape and breach face mark has its own individuality. the counsel for the appellants have not been able to make any substantial argument against the aforesaid recoveries of the fired cartridge cases and the fire arms, and the evidence of J.K. Sinha (P.W.14), which corroborates the testimony of the eyewitnesses in regard to the guilt of the appellants and petitioner Milkiat Singh.. 9. He has further relied on the observations of the Apex Court in (2003) 7 SCC 291 [State of Rajasthan vs. Bhawani and another], wherein the Apex Court has considered the discrepancies in recovery of some live and empty cartridges as trifling and insignificant and held that the prosecution had succeeded in establishing its case. He has also referred to the observations of the Apex Court in 2004 Cri.L.J. 372 [Banti alias Guddu vs. State of Madhya Pradesh], wherein the Apex Court has observed in Para 9, thus; .9. .......... It is true, the evidence of defence witness is not to be ignored by the courts. Like any other witnesses, his evidence has to be tested on the touchstone of reliability, credibility and trustworthiness particularly when he attempts to resile and speak against records and in derogation of his earlier conduct and behaviour. If after doing so, the Court finds it to be untruthful, there is no legal bar in discarding it.. to contend that learned trial judge has wrongly relied on the defence evidence to find fault with the prosecution case. 10. As against this, learned counsel for the respondents has taken us through the evidence led by the prosecution to contend that seizure of the gun is not properly proved, the use of the gun by Respondent No. 3 is also not proved, there is confusion and discrepancies regarding seizure of empty and live cartridges. According to him, the gun and 10 live cartridges were seized from the house of Respondent No. 3 at Kashiya Purab (U.P) and not at Tumsar and therefore, he contents that the prosecution case is not trustworthy. According to him, the gun and 10 live cartridges were seized from the house of Respondent No. 3 at Kashiya Purab (U.P) and not at Tumsar and therefore, he contents that the prosecution case is not trustworthy. He has also submitted that the witnesses examined by the prosecution i.e. alleged eye witnesses are totally untrustworthy because they are notorious criminals. He has pointed out that P.W.4 Atamkhan could not have known the name of Respondent No. 3 Rajnarayan while lodging report so as to mention the same in F.I.R., which was clearly at the instance of the police and therefore, he was totally unreliable. He has also submitted that the possible witnesses Shri Shukla Guruji, near whose house the incident occurred and Bhimandas have not been examined by the prosecution and therefore, the prosecution case is untrustworthy. Further, according to him, the shots from the gun, which is seized, cannot be fired one after another without any interval, as the said gun has to be loaded each time by taking cartridge from the pocket. Therefore, had it been so, as contended by the prosecution witnesses, the other person who had heard the sound of first fire; would have come to the spot and would have prevented Respondent No. 3 Rajnarayan from firing the said gun again and again. He has also submitted that the seized gun was not sent for forensic test, immediately and therefore, all the observations made by the learned trial judge in his judgment are correct and they cannot be assailed muchless for any reasonable ground. He further contended that the learned trial judge has rightly appreciated the evidence led by the respondents in their defence and therefore, he submitted that the appeal should be dismissed. 11. This being the appeal against the acquittal, impugned judgment has to be considered on the touch stone of the observations of the Apex Court in 2005(9) SCC 584 [Ayodhya Singh vs,. State of Bihar & others] .It is well settled that if on the same evidence two views are reasonably possible, where the court below takes a view in favour of the accused, the appellate court will not set aside the order of acquittal unless it finds the findings to be perverse, highly unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record or for other such reasons.. And the observations in, 2004 (9) SCC 310 [State of U.P. vs. Ram Bahadur Singh and others], wherein it was held that when there is plausible view of the trial Judge, and the prosecution case naturally creates suspicion, the judgment of acquittal should not be interfered with, and the observations in 2005(12) SCC 461 [Peerappa and others vs. State of Karnataka], .13 On an anxious consideration of the contentions in the light of the evidence on record and the findings of the trial court, we are of the view that the High Court ought not to have interfered with the order of acquittal, in this regard, we may recall the observations made by R.C. Lahoti, J [as His Lordship then was], speaking for a three Judge Bench in Kashiram ..vs.. State of M.P.. It was observed thus: (SCC P 71) .Though the High Court while hearing an appeal against acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would have been one of recording a conviction. It follows as a necessary corollary that it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court.. and further the observations in the latest judgment (unreported case) . Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court.. and further the observations in the latest judgment (unreported case) . Chandrappa & others vs. State of Karnataka in Appeal (Cri.) 853/2006, .(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of facts and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds, 'very strong circumstances', 'distorted conclusions' 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize' the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court o review the evidence and to come to its own conclusion, (4) An appellate Court however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.. need to be borne in mind. The judgment of the trial Judge of acquitting the respondents, in the present case, needs to be examined, vis-a-vis the contentions of the learned counsel for the appellants as to whether the judgment of the learned trial Judge is perverse, unreasonable and improper and the respondents are proved to be guilty of the offence charged, beyond reasonable doubts. The conclusion will have to be based on legally admissible evidence which does not admit any doubt or infirmity as regards its admissibility. 12. The conclusion will have to be based on legally admissible evidence which does not admit any doubt or infirmity as regards its admissibility. 12. As already pointed out above, the learned trial Judge has given elaborate reasons for coming to the conclusion as to why the prosecution witnesses are untrustworthy and how there are material contradictions & omissions in their evidence. He has also pointed out as to how there is discrepancy as regards the distance from which the fire was opened from the gun and how the discrepancy as regards seizure of the gun & the cartridges supports the case of the defence. The question is whether the appellant has been successful to show that the judgment of the trial judge is perverse to the record or it is at all not warranted. 13. In order to consider the contentions of the learned counsel for the appellant, the judgment of the learned trial judge has to be closely scrutinized. 14. It is not disputed even by the respondents that deceased Guddu and deceased Jagdish had died of homicidal death due to fire arm's injuries at the relevant time. It is also not in dispute that the respondents had been to police station immediately after the incident. Respondent No. 1 Mathuraprasad had gone to the police station to lodge the report against deceased Guddu. In fact report was lodged there. So as to make the Court to hold that the respondents or the Respondent No. 3 Rajnarayan guilty of the offences charged, it has to be established that the deceased had died due to firing from the gun of the Respondent No. 3 Rajnaryan, which is admittedly in his name, so also as the purchase of 10 cartridges is admitted by Respondent No. 3 Rajnarayan. 15. It is worthwhile to note that in this case the prosecution witnesses i.e. alleged eye witnesses have supported the prosecution case as regards firing by Respondent No. 3 Rajnarayan at the deceased, and therefore, the question would be whether this evidence can be accepted for basing the conviction of Respondent No. 3 Rajnarayan for the offence punishable under Section 302 of the Indian Penal Code, besides offence under Section 28 of the Arms Act. 16. It is needless to mention here that P.W.2 Hiralal, (Exh.57) was suggested in the cross examination that he had himself committed these murders. 16. It is needless to mention here that P.W.2 Hiralal, (Exh.57) was suggested in the cross examination that he had himself committed these murders. Learned Additional Public Prosecutor for the appellant has contended that as there was no suggestion of firing from gun and identification of gun to this witness, this would be a false defence and the benefit would go to the prosecution in view of the circumstances of the case. He has also contended that the defence taken is false and therefore, the case against Respondent No. 3 Rajnarayan is established. 17. In order to appreciate this contention, it is necessary to have a look over the evidence of P.W.2 Hiralal. This witness has supported the prosecution case in examination-in27 chief. In cross examination, however, he has given some of the admissions, by which his evidence becomes untrustworthy. He has stated that when accused persons were on Pal (Parapet Wall), accused No. 1 Mathuraprasad had told that, Guddu was coming and he should be killed and at that time he was by the side of the well. He has stated before the Police that accused No. 2 Kamlakant had told that Jagdish was coming and he should also be killed. He however, did not assign any reason as to why the police did not record so; in his statement. In the cross examination, he has further stated that he had given first information of the incident to the Police and after incident he had firstly brought police on the spot. But at that time the police did not record his statement. There is no explanation from the prosecution side as to why his report was not got recorded. In the latter part of his examination, he has stated that as he already told about the incident to the policeman, he had not told about the same to P.S.I. Pande (I.O.). He further stated that under the apprehension that police would catch him, he had gone away. He denied the suggestion that he had committed the murder of deceased Guddu and deceased Jagdish and that under apprehension that police would catch him, he had run away. Surprisingly he stated that for 5-6 days after the incident, he was hiding from the Police. He denied the suggestion that he had committed the murder of deceased Guddu and deceased Jagdish and that under apprehension that police would catch him, he had run away. Surprisingly he stated that for 5-6 days after the incident, he was hiding from the Police. For 5-6 days policemen were coming to him and police had send message to him that they wanted to record his statement but only after 5-6 days of the incident, police had recorded his statement. It is pertinent to note that in his evidence he has stated that there are no cases pending against him. Therefore, there was nothing for him to hide himself from the police and there is no material on record to show that he had reason to be away from the police at the relevant time. There is nothing on record to show why he should be apprehensive of arrest. His conduct does not seem to be in consonance with the natural course of things and therefore, his evidence cannot be accepted as a truthful version that he had seen the incident, as alleged. It is true that he has been given a suggestion that he himself has attacked the deceased and killed them. Even it is assumed for a moment that this was a false suggestion, this would not give any strength to the prosecution case. 18. Turning to the evidence of P.W.1 Dashrath Morkute, it clearly appears that he was servant of deceased Guddu, who was dealing in illicit liquor. He has supported the prosecution case regarding the incident and has identified the said gun as a weapon of offence. In cross examination, however, there is some material omission, which need to be seen, viz., Accused No. 1 Mathuraprasad had given pistol to accused No. 3 Rajnarayan and he could not assign any reason why the police did not record the same in his statement. In further cross examination he has stated that, since before 2-3 months of incident, he was selling liquor of deceased Guddu and during that period the Police had arrested him for 2-3 times, because he had no license of selling liquor. There are so many cases against him in the Court and all the cases are under Prohibition Act and he was convicted for 2 to 4 times. He has also been contradicted with some of the portions of his statement. There are so many cases against him in the Court and all the cases are under Prohibition Act and he was convicted for 2 to 4 times. He has also been contradicted with some of the portions of his statement. Material admission in his cross would be that, before the incident he had no knowledge of the names of Accused No. 2 Kamalkant and Accused No. 3 Rajnarayan. He has not told the names of those accused to the Police but he stated that he did not know as to why the police recorded the names of those accused persons in his statement. He specifically stated that he knew Accused No. 2 Kamalkant and Accused No. 3 Rajnarayan (by face). Therefore, mentioning of the names of these accused in his statement shows the interestedness of this witness in prosecution of the respondents. It is pertinent to note further that he has stated in cross examination that before two years he was servant of Respondent No. 1 Mathuraprasad and as he (Respondent) had levelled allegations of theft against him, he had to leave that service. All these things certainly cast doubts on his evidence. 19. This takes us to consider the evidence of P.W.4 Atamkhan, an important witness in this case, who had lodged report to the police Station. P.W.4 Atamkhan had allegedly seen the incident. He has also stated that at the relevant time P.W.3 Purushottam and Manik Ilme were there. After deposing about the incident, he has specifically stated, besides him, Manik Ilme, P.W. 3 Purushottam, Arun Madavi and Shukla Teacher had seen the incident and the people had gathered at that place. Thereafter he had gone to Tumsar Police Station where Dashrath (P.W.1) was present and he told about the incident to P.S.I. Pande, which was reduced into writing being Exh. 61. He identified the gun before the Court to be the weapon of offence. In cross examination he stated that he was doing the business of selling liquor with deceased Guddu. He has further stated that before the incident Accused No. 2 Kamalkant was in acquaintance with him and he was knowing him by his name and face. Before the incident, Accused No. 3 Rajnarayan was not in acquaintance with him and he was not aware of his name. He has further stated that before the incident Accused No. 2 Kamalkant was in acquaintance with him and he was knowing him by his name and face. Before the incident, Accused No. 3 Rajnarayan was not in acquaintance with him and he was not aware of his name. He has specifically stated that he had stated before the police that said persons were the sons of sister of Accused No. 1 Mathuraprasad and he had not stated before the police their names. He further added that police had inquired with Accused No. 2 & 3 about their names and at that time he came to know about their names. Needless to mention that in F.I.R. the names of the respondents have been mentioned. There is no mention in the F.I.R. that he was knowing them by face. 20. In further cross examination, he has stated that he had been in jail for last 2 months (at the time of evidence). There are criminal cases pending against him. He has stated that deceased Guddu had assaulted P.S.I. Shri Sakharkar with knife and that when he had gone to the police station, all the three accused persons (respondents) were present there and therefore, at the time of writing of report (Exh. 61) he came to know about the names of Accused Nos. 2 & 3. In latter part of his cross examination, he has stated that accused persons were telling police that they have come after committing murder and when he had gone to the police station to give report, gun was there and he had seen it and in police station, a policeman had told him that it was the same gun which was used at the time of incident and police had told him that it is the same gun through which the fire was opened on Guddu and Jagdish. In further part of his cross examination, he has stated that he had told P.S.I. Pande that he did not know the name of the accused and he knew him only by face and if he is shown to him, he can identify and accordingly P.S.I. Pande had recorded in report Exh. 61. He could not tell as to why P.S.I. Pande had written the names of accused Nos. 2 & 3 in the report Exh. 61. 61. He could not tell as to why P.S.I. Pande had written the names of accused Nos. 2 & 3 in the report Exh. 61. Therefore, it clearly appears that this witness was not knowing the name of atleast Respondent No. 3 Rajnarayan at the time of lodging report. His name came to be known in the police station and thereafter the same was recorded in the F.I.R. However, P.W.17, P.S.I. Pande, did not state in this way in his evidence. He specifically stated that P.W.4 Atamkhan had given him oral report at Police Station Tumsar and it was reduced in writing as per Exh. 61 and after some time of writing of F.I.R., all the three accused persons had come to the police station, out of which accused No. 3 (Respondent No. 3) Rajnarayan had a gun. It clearly means that Respondents were not there when P.W.4 Atamkhan had lodged the report and therefore, mentioning of the names of the respondents in his report, is not free from doubts. 21. Turing to the evidence of P.W 5 Nandu (Exh.63), it would be seen that he has also deposed about the incident. He was contradicted with some of the portions of his statement. It would be seen from his cross examination that he was released on 11.10.1988 from jail and before that he was in jail for two months. There was externment proceeding against him. He denied the suggestion that he had seen the incident from about 150 steps away, but in further cross examination, he was contradicted with the portion marked 'B' of his statement in which he had stated that he had seen the incident from about 150 feet. This was material in view of the suggestion of the defence that the incident was committed by somebody else. In further cross examination, he admitted that there are two cases of Section 142 of Bombay Police Act and one case under Section 326 of the Indian Penal Code, besides prohibition cases against him. 22. This will show that all the prosecution witnesses have criminal background. Although the same would not be sufficient to discard their evidence in totality, the fact remains that because of such background, they are likely to be under the thumb of the police so as to make them to depose as the police wanted. 22. This will show that all the prosecution witnesses have criminal background. Although the same would not be sufficient to discard their evidence in totality, the fact remains that because of such background, they are likely to be under the thumb of the police so as to make them to depose as the police wanted. This is not to say that their evidence is untrustworthy because of this, but the fact remains that the same became suspicious and has to be relied upon only when it is proved to be acceptable beyond any shadow of doubts. 23. In the circumstances of the case, the possibility of independent witnesses is clearly there. In fact the incident had occurred near the house of one Shukla Guruji, who is not examined. One Bhimandas is also pointed to be the possible witness, he is also not examined. In these circumstances, the evidence of the alleged eye witnesses does not inspire confidence. 24. At this stage, to fortify the above view, the evidence of defence witness who is working as Clerk in Bhandara District Prison i.e. D.W.1 Madhukar Waghare (Exh. 135) needs to be seen. He has stated that he had brought the register of 'under trial prisoners' for the period from 7.11.1986 to 1.6.1987 i.e. of the day of incident 11.3.1987. In his evidence, he has further stated that, as per that register, on 11.3.1987 Chango Tejram Rahangdale, Manik Shripat Ilme, Atam Khan Turab Khan Pathan were the under trial prisoners. As regards Atamkhan, he stated that as per the entry in that register P.W.4 Atamkhan was in Bhandara Jail since 11.3.1987 till 20.3.1987 and as per the entry in that register, P.W.3 Purushottam was in Bhandara Jail since 11.3.1987 till 14.3.1987. He has also stated that Accused No. 1 Mathuraprasad had come in Bhandara Jail on 23.3.1987, so also the other respondents. In cross examination by the learned P.P, this witness has stated that, as per the entries in the register, Manik Ilme and P.W.4 Atamkhan were arrested on 11.3.1987 and on the same day they were brought in jail, but in register there is no entry to show the time as to when they were brought to jail on 11.3.1987. But he stated that P.W.4 Atam Khan and Manik Ilme must have been brought in Bhandara Jail after 6 - 6.30 p.m., so also P.W.3 Purushottam. But he stated that P.W.4 Atam Khan and Manik Ilme must have been brought in Bhandara Jail after 6 - 6.30 p.m., so also P.W.3 Purushottam. The relevant entries clearly point out that these prisoners were brought to the jail on 11.3.1987. In this context, therefore, the evidence of P.W.17 P.S.I. Pande needs to be closely seen. In his evidence, he has stated, .I do not remember that, I had arrested Atamkhan (P.W.4), Hiralal Patil (P.W.2), Manik Ilme, Purushottam Ilme (P.W.3) and Arun Madavi on 11.3.1987 under Section 151 of Cr.P.C. As per the record of Tumsar Police Station, P.W.4 Atamkhan, Nandu Chindhalore, Dashrath (P.W.1) and Manik Ilme were habitual offenders. It is not true to say that, I had not recorded the statements of any witnesses except Premkrushna Shukla, Chotelal Pande, Bhimandas and Lilabai.. This clearly shows that this main witness of prosecution i.e. I.O. is hiding some information. As already pointed out above, the defence witness who is clerk of the prison has deposed about the fact that these prisoners were in jail from 11.3.1987. They cannot be in jail except for the arrest by this P.S.I. Pande and therefore, P.S.I. Pande should have told about this. This will show that there was necessity of arresting these prisoners under Section 151 of Cr.P.C. It will also reflect on the status of these witnesses. The necessity of arresting all these witnesses will clearly carve out reasons for possibility of their evidence being false apart from raising of inference that they might be acting under the thumb of the police. 25. In this context therefore, the further answers of this witness in cross examination assume importance i.e. he has stated that in his investigation, no reference about Shankargyan, Headmaster, had come. During his investigation, he did not come to know that Shankargyan, Headmaster, was residing near the spot. This appears to be in total contradiction with the spot panchanama. P.W.9 Raibhan, who is Revenue Inspector, has stated that he had gone to the spot with Shri Shukla Guruji. He had prepared map on the spot and at that time one Premkrushna Shukla was present. He had also stated that he had enquired with Premkrushna Shukla about the house of deceased Jagdish, accused No. 1 Mathuraprasad and houses of other persons and Premkrushna had given that information. He had prepared map on the spot and at that time one Premkrushna Shukla was present. He had also stated that he had enquired with Premkrushna Shukla about the house of deceased Jagdish, accused No. 1 Mathuraprasad and houses of other persons and Premkrushna had given that information. He further stated that Premkrushna had shown the spot where the witnesses were standing at the time of incident and therefore, the statement of I.O. in his evidence that such things were not transpired about Shri Shukla in the investigation appears to be totally incorrect. 26. The spot panchanama shows the location of Sindhi tree and distance of parapet wall of the tank. Cross examination of this witness shows that from Sindhi Tree, gate of parapet wall of tank is at a distance of about 900 feet and about 2-3 minutes are required to reach near gate of parapet wall from the Sindhi Tree. The house of Shukla which is shown near the gate in map Exh. 71 is constructed with bricks, tiles and cement. 27. P.W. 2 Hiralal has stated that he had been to the house of deceased Jagdish and thereafter, while he was lifting the clothes, he heard the noise of running and when he came outside the house, he had seen that accused persons had come out of the house of accused No. 1 Mathuraprasad and at that time accused No. 3 Rajnarayan had a gun and they had gone towards Pal i.e. parapet wall. Thereafter the gun was fired. It appears from the evidence of this witness so also the other alleged eye witnesses that the gun was fired from some distance. 28. Therefore, it is necessary to see the evidence of P.W.15 Shri Rao, Assistant Chemical Analyzer (Ballistic) and P.W.16 Shri Ramteke, Assistant Chemical Analyzer. P.W.15 Shri Rao has stated that the presence of blackening, power residue and the detention of metallic lead; around the periphery of the encircled shot hole on the back left upper side of Nehru Shirt. The corresponding shots on the sweater, on the Baniyan are consistent with the passage of lead pellets having fired from the powder range of the shotgun. Such was the case regarding the wounds of deceased Jagdish also. The corresponding shots on the sweater, on the Baniyan are consistent with the passage of lead pellets having fired from the powder range of the shotgun. Such was the case regarding the wounds of deceased Jagdish also. In the cross examination, he has stated that the powder range in the case of shotgun is up to 3 to 9 feet and from the powder range, he cannot tell what type of shotgun was used in any particular case. It was correct to say that if there is a present of wads, cards and blackening power in the wound, the firing of the gun can be from a very close range. The witness volunteered that in case of shotgun when it is fired within a distance of two yards, the close range phenomena such as scorching, blackening and tatooing also used to be observed. In his report, Exh. 93, he stated, the words 'tatooing' was not used and the words 'scorching' was also not used. He has stated that he had noticed tatooing and scorching, but he has not mentioned the same in his report Exh. 93. He has further stated that all types of shotguns cannot have the same range of firing and the closefiring phenomena varies from gun to gun. 29. P.W. 16 Shri Ramteke has examined the gun as well as cartridges, pellets etc. It is in his evidence that Exh.1, a single barrel gun was in working order and residue of fired ammunition was detected in the barrel. In the cross examination, he has specifically stated that he agrees with the preposition that if there were burnt edges of wound, the distance between the muzzle and the victim would only be a few inches and not more than 9 inches. If the gun is fired and thereafter it is opened, the empty shells of cartridges will eject backward. If the gun before the court is fired, the cartridges with gun shot will not go forward but it will be found at the place where the person firing is standing. If the gun is fired at the place, we will find the pellets where the gun is fired. If the gun is fired, the empty cartridges will find near the assailant. Without cartridges, it is not possible to fire with the gun. If the gun is fired at the place, we will find the pellets where the gun is fired. If the gun is fired, the empty cartridges will find near the assailant. Without cartridges, it is not possible to fire with the gun. With the gun before the Court, we cannot fire continuously, non-stop for 5-6 times and it is only possible with automatic gun. 30. No authority or support is needed to say that this evidence clearly shakes the prosecution case. This witness is not declared hostile and therefore, this evidence will clearly go to show that in the instant case the firing would have been from a distance of some inches. The empty shells should have been found near the place where the assailant was present, so also the pellets. This is in total contradiction with the inference that can be drawn from the relevant spot and seizure panchanama on record and therefore, it makes the prosecution case doubtful. 31. This takes us to consider the evidence regarding the use of gun seized at the time of incident. It is the case of the defence that the gun and the live cartridges were seized from the house of Respondent No. 3 Rajnarayan at Kashiya purab (U.P). He has examined D.W.2 Vinodkumar to prove this. This witness has clearly stated that the gun (Art. 22) before this Court is the same which was seized by the Police from the house of accused No. 3 Rajnarayan at Kashiya Purab, so also the cartridges. According to him, when the cartridges were seized from the house of Respondent No. 3 Rajnarayan, they were live cartridges. He denied the suggestions given by the learned P.P. Even if it is assumed that this evidence is not reliable, fact remains that the evidence of eyewitnesses is not that trustworthy on which conviction can be rested. 32. We cannot lose sight of the evidence of P.W.14 Devashish, who has been examined to show the sale of arms and ammunition to the Respondent No. 3 Rajnarayan. This witness has stated that on 18.3.1987, the police had come to him and enquired with him. In his evidence he has clearly stated that Respondent No. 3 Rajnarayan had purchased 10 cartridges as per sale register. This witness has stated that on 18.3.1987, the police had come to him and enquired with him. In his evidence he has clearly stated that Respondent No. 3 Rajnarayan had purchased 10 cartridges as per sale register. What is specific in his evidence is that in cross examination he stated that all the cartridges which were shown to him by the police were live cartridges and at that time he was shown about 9-10 cartridges. He identified the cartridges before the Court and he specifically stated in cross examination that the said empty cartridges were the same which were shown to him at the relevant time, meaning thereby they were live cartridges at that time. In fact, this witness has categorically stated in his cross examination that at that time all the said 6 cartridges were live which were shown to him by the police. This witness is not declared hostile. Therefore, there is inconsistency with the prosecution case as regards whether 6 empty cartridges were in fact found on the spot, 2 were test-fired. Accordingly there were only 2 live cartridges in balance. The prosecution has failed to give any plausible explanation for this inconsistency except that due to mistake, he might have deposed like this. The attribution of deliberate and intentional false statement cannot be accepted as he is not declared hostile. 33. This takes us to consider the evidence of P.W.13 . Vishverswarnath, who is Arms Clerk, working in Collectorate, Allahabad. He stated that he is working in Arms Section in the Office of Collector, Allahabad. At the time of evidence he had brought arms register from that office. He has specifically stated that on 18.3.1987 Policemen of Tumsar had come for investigation and he had given extract copy of entry of Serial No. 1943 of that register to them. The said entry is dated 7.12.1983 about the license which was issued in the name of Respondent No. 3 Rajnarayan for Gun No. S.B.B.L. 7150-83 manufactured by Sportsman India. In cross examination, he had to admit that as per Exh.88 the information regarding Gun No. S.B.B.L. 1750-83 was sought but the said information was not given. As per the record of Collector, Allahabad, the Gun No. S.B.B.L. 1750-83 is not in the name of Rajnarayan Mahavir Prasad. In cross examination, he had to admit that as per Exh.88 the information regarding Gun No. S.B.B.L. 1750-83 was sought but the said information was not given. As per the record of Collector, Allahabad, the Gun No. S.B.B.L. 1750-83 is not in the name of Rajnarayan Mahavir Prasad. The Gun which was sent for chemical analysis, vide Chemical Analyzer's report (Exh.95), is one single barrel breech loading 12 bore hammer shotgun having body No. 7150-83. It was sent for report. 34. In view of the defence of the respondent, it was necessary for the prosecution to explain the inconsistency in the number of seized gun, crept in the record. It is necessary to note that in cross-examination, P.I. Pande has stated that, he did not come to know that gun number is mistakenly mentioned in any other paper besides Exh.88. In Exh. 114 Gun No. DBBL-7150/83 is correctly mentioned. On a Gun Art.No.22 before the Court, number 7150/83 is written. In further cross examination he stated that, from investigation at Allahabad, he did not come to know that Gun No. DBBL 7150/83 was with accused No. 3 Rajnaryan. 35. Exh. 73, Seizure Memo of the Gun, by P.S.I. Gaikwad, shows that the seized gun had a number 7150-83. Evidence of P.W 13, Arms Clerk Shri Shrivastava, shows that as per Exh.88, information of Gun No. S.B.B.L. 1750-83 was required and therefore, the evidence as regards S.B.B.L. 7150- 83, which had come on record in pursuance to the gun seized remained unexplained. In this view of the matter, therefore, the discrepancy in the number of the gun for which the information was sought and the gun which was seized, cannot be brushed aside by simply saying that it is immaterial. 36. Here is the case where witnesses say that the fires were one after another. The gun before the court is a single barrel breech loading gun. The cartridges were to be taken out from the packet attached to the belt before each loading. Therefore, every time, when fire was to be made, the cartridge was required to be taken from the packet of the belt, it was to be loaded in the gun and then the shot was to be fired. The learned counsel for the respondents rightly submitted that, every fire in such case would take some time i.e. to load the cartridge and then to fire. The learned counsel for the respondents rightly submitted that, every fire in such case would take some time i.e. to load the cartridge and then to fire. Therefore, either that would provide an opportunity to the deceased to flee away, atleast for deceased Jagdish or to resist had the firing been from very close. This may not be possible if the person who was opening the fire is at a distant place. Thus, if the person opening fire is at a distant place, then the injuries found on the person of the deceased, and the holes on the clothes of the deceased as are found may not have blackening, scorching etc, as noticed in this case. Therefore, there is a self contradictory evidence which either negatives the firing from a close range i.e. powder range or leading to negative the inference of firing from the distant place, which is the prosecution case. In these circumstances of the case, therefore, the prosecution evidence appears to be self contradictory without proper explanation and therefore, it would be unsafe to rely on the same, for basing the conviction. 37. Learned Additional Public Prosecutor for Appellant State has relied on the authorities cited by him as stated above and contended that the core of the prosecution case as stated by the eye-witnesses has to be accepted and therefore, the prosecution should be held to have proved the offence against Respondent No.3 Rajnarayan. 38. It is true that some of the inferences drawn by the learned trial Judge appear to be not correct, but all the same it does appear that here is the prosecution case which is riddled with many contradictions and unexplained situations. Investigating Officer P.W.17, P.I. Pande should have clarified the same to satisfactory level. It is also apparent that all the witnesses who are examined by the prosecution (alleged eye witnesses) are facing some or the other offences. Even according to the I.O., they are habitual criminals. The evidence of P.W.4 Atamkhan, who had lodged report, is also found to be not knowing the name of the main accused against whom the charge of offence under Section 302 of the Indian Penal Code is levelled, but still mentioning his name in the F.I.R. There are discrepancies as regards the nature of the wounds and possible nature of the wounds, had the fire of the gun was from a distant place. All these circumstances do not permit us to say that the inferences drawn by the learned trial judge are totally incorrect & unfounded, though for a few, it can be said that they are not correct. It is also apparent that, considering the circumstances of the case, possibility of lodging false report against the respondents cannot be overruled. True that there is strong suspicion raised in the case by the evidence against the respondents, but that by itself cannot take place of proof. Further, moral conviction is no conviction in the eyes of law and the court cannot convict accused only because the Court is of the opinion that he has committed the offence, sans the legally admissible and reliable evidence on record. In such circumstances, it is difficult to say that the prosecution has established its case beyond reasonable doubts, and the judgment of the learned trial Judge is perverse or most unreasonable. 39. Therefore, in view of above, it is not possible to say that this is a fit case for reversing the judgment of the trial Court of acquitting the respondents for all or any one of them. The appeal, therefore, fails and the same is dismissed. 40. The fees to be paid by the High Court Legal Services, Sub Committee, Nagpur, to the appointed counsel Mr. N.A.Badar, for the Respondents, is quantified at Rs. 2000/.