Judgment ( 1. ) THIS criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred being aggrieved by the judgment, finding and sentence dated 29/10/1993 passed by 1st Additional Sessions Judge, Shahdol in Sessions Trial No. 25/92, whereby the appellant has been convicted under Section 307 of I. P. C. and sentenced to R. I. for 5 years with fine of Rs. 100/-, in default of payment of fine further S. I. for 1 month. ( 2. ) PROSECUTION case in short is that Shivendra Pratap Singh was S. H. O. of police Station, Anuppur on 22. 12. 1991. At about 5:00 a. m. he had gone to investigate Crime No. 177/91 under Section 395/397. He reached at village Sinduri where he inquired about the miscreants. It was apprised that they had gone towards tipan river, therefore, he proceeded towards that side. He saw that fire was burning near Tipan river. He suspected the miscreants. Four miscreants having suitcase in their hand tried to run away. He warned them to stop but one of the miscreants fired towards him. Again he tried to prevent then another miscreant fired towards him. He asked them to surrender but one of the miscreants loaded cartridge in country-made pistol then he fired with his revolver to defend himself and his police party. Constable Balendra Prasad Mishra also fired at his direction. Two miscreants sustained injuries. They were caught and two other also caught. Katta of 315 bore along with one live cartridge was seized from Ramkishore (deceased) in encounter and one 315 bore Katta and one live cartridge was seized from this appellant. The seizure of the looted articles were also effected from the accused persons. Since the appellant was injured he was admitted in hospital. Another injured person Ramkishore died. Spot map was prepared. The statements of the witnesses were recorded. The accused persons were arrested. After completing the usual investigation, the chargesheet was filed in the Court of j. M. F. C. , Anuppur who committed the case to the Sessions Court for trial. ( 3. ) APPELLANT stood charged under Section 307 of I. P. C. He denied the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 12 witnesses whereas appellant did not examine any witness in his defence. ( 3. ) APPELLANT stood charged under Section 307 of I. P. C. He denied the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 12 witnesses whereas appellant did not examine any witness in his defence. After appreciating the evidence trial Court found him guilty under Section 307 of I. P. C. and sentenced thereto as stated hereinabove in para No. 1 of the judgment. Being aggrieved by the judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. ( 4. ) SHRI S. C. Datt, learned counsel for the appellant submitted that trial Court has not appreciated the evidence in proper perspective. There is no independent, cogent and dependable evidence to show that appellant had fired aiming at the police party with intention to commit murder. Kalloo (PW-11) independent witness has not supported the prosecution case. The case is based only on the evidence of the interested witnesses, therefore, the offence under Section 307 of I. P. C. is not made out. The finding of guilt is erroneous which deserves to be aside and the appellant is entitled for acquittal. ( 5. ) ON the contrary, Shri Pankaj Dixit, learned P. L appearing on behalf of respondent/state supported the impugned judgment mainly contending that prosecution has proved the case beyond reasonable doubt against the appellant hence it does not call for any interference. ( 6. ) THE main point for consideration in this appeal is that whether the trial court has committed any illegality in convicting and sentencing the appellant under section 307 of I. P. C? ( 7. ) SHIVENDRA Pratap Singh (PW-1) has deposed that he along with constables balendra Pratap Mishra and Murlidhar had gone to investigate Crime No. 177/91 under Sections 395/397. As soon as they reached nearby to Tipan river they saw the fire burning and when they were only at the distance 15 to 20 fit they saw four miscreants carrying suitcases and bag. Ramkishore fired and thereafter Indresh also fired and when Ramkishore was attempting to fire he fired by his revolver which hit Ramkishore and Indresh. Balendra also fired by Rifle. Thereafter they were caught and one 315 bore Katta and a live cartridge were seized from this appellant vide Ex. Ramkishore fired and thereafter Indresh also fired and when Ramkishore was attempting to fire he fired by his revolver which hit Ramkishore and Indresh. Balendra also fired by Rifle. Thereafter they were caught and one 315 bore Katta and a live cartridge were seized from this appellant vide Ex. P-4 which is filed in S. T. No. 26/92 and its copy is filed with this record. After returning at police station the F. I. R. (Ex. P-7) was recorded. ( 8. ) THIS witness has been subjected to a lengthy cross-examination wherein he has admitted that he has only mentioned in F. I. R. Ex. P-7 that miscreants fired but it is not mentioned that which of the miscreants fired. He has also admitted that he was having this knowledge that which of the miscreants has fired at police party but the same has not been mentioned in the F. I. R. He has also admitted that there is omission in his police statement in this regard. He has further been contradicted from Ex. P-7 F. I. R. in which it is mentioned that he carried Thakurdeen and Kallu witnesses from village Sinduri for which he has given explanation that such fact has been wrongly mentioned in F. I. R. ( 9. ) THUS, on perusal of the entire evidence of this witness it is manifestly clear that he did not mention the aforesaid fact in F. I. R. Ex. P-7 and also in police statement Ex. D/1. He is improving his statement before the Court that this appellant fired at police party. It is evident that he recorded F. I. R. after returning from the spot, therefore, he was having the full knowledge that which of the miscreants has fired but he did not mention this fact in F. I. R. (Ex. P-7) and also does not find place in his police statement Ex. D-1 recorded during the course of investigation. Thus his evidence is discrepant on material point. ( 10. ) MURLIDHAR (PW-8) and Balendra Prasad Mishra (PW-9) have given the similar evidence as given by Shivendra Pratap Singh (PW-1 ). Murlidhar (PW-8)has stated that the incident occurred at about 4:30 a. m. It was winter season. Thought the man was visible from the distance of 100 meter but they were not being identified. ( 10. ) MURLIDHAR (PW-8) and Balendra Prasad Mishra (PW-9) have given the similar evidence as given by Shivendra Pratap Singh (PW-1 ). Murlidhar (PW-8)has stated that the incident occurred at about 4:30 a. m. It was winter season. Thought the man was visible from the distance of 100 meter but they were not being identified. Balendra Prasad Mishra (PW-9) has stated that he could not see the pallet fired by miscreants. Both these witnesses have been contradicted from their police statements Ex. D-3 and Ex. D-4 respectively on certain facts. ( 11. ) THAKURDEEN (PW-7) has given the evidence in support of the prosecution but he has also admitted that the time of incident was 5:00 a. m. It was winter season. He saw the four persons from the distance of 100-125 yards. There was darkness everywhere except the place where the fire was burning. He could not see as to which of the miscreants fired. He could also not see whether the bullet passes besides Shivendra Pratap Singh (PW-1): He has also been contradicted from the police statement Ex. D-2 from certain facts. ( 12. ) KALLU (PW-11) has not supported the prosecution case and has been declared hostile. He has clearly stated that he has not gone with police party at Tipan River and has not seen any miscreants there. ( 13. ) FROM the evidence of these witnesses, it is crystal clear that there was darkness at the time of incident and the persons were not being identified. In such circumstances, it was not possible to see that which of the miscreants had fired. ( 14. ) FROM the aforesaid discussion, it is evident that there is no cogent, reliable and dependable evidence to show that this appellant fired at complainant or police party. It was also not possible since the incident is of the early morning when there was darkness everywhere in the winter season and it was not possible to see as to which of the miscreants fired and that is the main reason why there is omission of such fact in F. I. R. (Ex. P-7) recorded by complainant Shivendra Pratap singh himself. Prosecution was required to prove not only the fact that appellant fired but it was also to be proved that he fired aiming the complainant or police party. P-7) recorded by complainant Shivendra Pratap singh himself. Prosecution was required to prove not only the fact that appellant fired but it was also to be proved that he fired aiming the complainant or police party. Apart from it, there is nothing on record that what was the distance in between the appellant and complainant and police party. Investigating Officer ramanuj Jaiswal (PW-12) has nowhere mentioned in the map regarding the distance from where the appellant is said to have been fired on the police party. ( 15. ) IN the case of Hajara Singh v. State of Punjab, (1972) 1 SCJ 561, it has been held that conviction can not be maintained in the circumstances that attempt to kill by firing shots was in complete darkness and he evidence not clear whether shots were fired in the direction of the police or in the air or as to the aim which was taken. ( 16. ) IN the case of Mansuri Nizamuddin v. The State, A. I. R. , 1955 PATNA 330 (Vol. 42, C. N. 81) it has been held that thus : "to constitute an attempt to murder contemplated by S. 307 there must be some overt act combined with evidence of mens rea. The burden is always on the prosecution to prove, first, the actus reus, that is, the accused had done something which in point of law marked the commission of the offence, and, second, the mens rea, that is, in taking this step he was inspired by the intention to go on to reach a definite objection which would constitute a specific offence. Held that the facts in this case when examined, would indicate that A was shooting at random for the purpose of frightening his pursuers and would be captors, and it was not possible to hold that a had the mens rea, that in the circumstances, his act of firing was going to cause death, to any of the villagers. " ( 17. ) IN the light of the aforesaid pronouncements and in the facts and circumstances of this case, it is manifestly clear that the prosecution has failed to prove the case beyond reasonable doubt against the appellant, therefore, the finding of guilt under Section 307 of I. P. C. is erroneous which deserves to be set aside and the appellant is entitled for acquittal. ( 18. ( 18. ) CONSEQUENTLY, appeal succeeds and is allowed. The conviction and sentence passed by trial Court under Section 307 of I. P. C. is hereby set aside. The appellant is acquitted from the charge under Section 307 of I. P. C. The appellant is on bail. His bail bonds are discharged. He be set at liberty. Appeal allowed.