JUDGMENT ALOK K. SINGH, J. 1. Under challenge in this appeal is the judgment and order dated 13.1.2006 passed by Sri Mayank Kumar Jain, the then Additional Sessions Judge (FfC-3), Hardoi convicting the sole appellant under section 307, I.P.C. and sentencing him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/-, in default three months additional imprisonment, and acquitting co-accused under sections 307/34 and 506, I.P.C. 2. Briefly stated the facts of .the• case are that on 19.11.1996 at about 7.00 p.m. one Sri Krishna lodged a report at Police Station Shahabad saying that on the same day at about 5.30 p.m. while he was coming back from the tube-well of Nabi Jan Khan resident of Mehmand and was on his way towards his house, in front of tube-well of Sri Ram near the grove of Perumian then, Ram Swaroop and Satish belonging to his Mohalla appeared with country made pistols in their hands. They started abusing him and when he objected, Ram Swaroop fired at him by his country made pistol inflicting injuries on his arm and back. On his raising alarm Nabi Jan Khan, Brij Lal and Angne Lal rushed to his rescue and the accused persons filed away from there after threatening him. His injuries were examined at Primary Health Centre, Shahabad on the same day. After recording the statements of witnesses and completing other formalities of investigation the charge-sheet was submitted against two persons named above. After taking cognizance the learned Magistrate committed the case to the Court of Sessions where charges under section 307 I.P.C. against appellant and under sections 307/34 and 506, I.P.C. against co-accused Satish were framed. The accused denied the charges and claimed trial. 3. In support of its case the prosecution examined the following witnesses: P.W.1. Sri Krishna - (injured-informant) P.W.2. Nabi Jan Khan- (eye-witness-he has beer declared hostile) P.W.3. Brij Lal- (eye-witness-he has been declared hostile) P.W.4. Angne Lal- (eye-witness) P.W.5. Dr. R.C. Agarwal- (he proved the X-ray report) P.W.6, Shambhoo Nath. (scribe) P.W.7. H.M.Brij Lal Verma (he proved G.D. etc.) P.W.8. S.I. Harveer Singh (LO) P.W. 9. B.P Kanojia- (he proved injury report and supplementary report) 4. In the statements under section 313, Cr.P.C. it was contended by the accused persons that there was a litigation between the two factions but the incident was denied. No oral evidence was adduced in defence. H.M.Brij Lal Verma (he proved G.D. etc.) P.W.8. S.I. Harveer Singh (LO) P.W. 9. B.P Kanojia- (he proved injury report and supplementary report) 4. In the statements under section 313, Cr.P.C. it was contended by the accused persons that there was a litigation between the two factions but the incident was denied. No oral evidence was adduced in defence. However, three documents were filed in defence. The learned Court below acquitted the co-accused Satish of the charges under sections 307/34 and 506, I.P.C. giving benefit of doubt but convicted and sentenced the appellant Ram Swaroop in the aforesaid manner. Feeling aggrieved by the aforesaid judgment and order this appeal has been preferred. 5. I have heard Sri Nadim Murtaza, learned Counsel for the appellant and Sri D.P. Upadhyay learned A.G.A. and perused the entire lower Court record. 6. At the out set the learned Counsel draws the attention of the Court towards both the injuries sustained by the sole injured, Sri Krishna, which are as under: (i) Multiple gun shot wound of entries and abrasions in an area of 13 cm. x 8 cm. on the back of right chest, 6 cm. away from right posterior axilary fold of right axila. Abrasions led in colour, size smallest 0.2 cm. x 0.2 cm., largest 0.4 cm. x 0.3 cm., abrasion smallest 1 cm x 0.2 cm., largest 25 cm x 0.3 cm. No blackening, tattooing present, redness present, hair singed, kept under observation, advised X-ray. (ii) Multiple gun shot would of entries and abrasions in an area of 9 cm. x 9 cm. on the back of right arm, 9 cm above right elboew joint, size of gun shot wound 0.3 cm. x 0.3 cm smallest 02 cm. x 0.2 cm., abrasion 3 cm x 2 cm., kept under observation advised X-ray. No blackening - tattooing, forearm hair singed, bleeding present. 7. Then he draws the attention of the Court towards the substantive statement of injured Sri Krishna (P.W. 1) according to whom when confronted with both the accused persons he was fired at by both of them though the fire made by Satish did not hit him. Nevertheless the fire made by the appellant struck him. Now if we take a pause. Nevertheless the fire made by the appellant struck him. Now if we take a pause. here and go through the injuries mentioned hereinabove it would appear that either this witness is giving false statement or the incident did not take place in the alleged manner because both the injuries have been caused on the back side of the injured and there is no single injury on the front side although the injured himself has categorically stated that when he was confronted with them, they abused and threatened him and immediately fired at him. It is also worthwhile to note at this stage that though in the F.I.R. the accusation of firing was made against the appellant and an unsuccessful effort was made in the substantive statement to include the other fellow Satish also saying that he had also fired upon him but this injured could not stand on his legs and after detailed cross-examination he conceded that the fire made by Satish did not cause any injury to him. Merely on this ground Satish has been acquitted by the Court below. Though the prosecution has examined in this case three eye-witnesses but only Angne Lal (P.W. 4) supported the prosecution case; the remaining two eye-witnesses, namely Nabi Jan Khan (P.W. 2) the tube-well owner and Brij Lal (P.W.3) did not support the prosecution case and consequently they were declared hostile. From their cross-examination nothing comes out to suggest that they were either won over or pressurized to give statement in favour of the appellant. The prosecution claims. the aforesaid both the persons, Nabi Jan Khan and Brij Lal (P.W.2 and P.W.3) to be eye-witnesses but they have categorically refused to have witnessed the occurrence and as stated above nothing comes out from then crossexaminations to suggest that they have intentionally turned hostile either under some pressure of alurement. Therefore, a reasonable doubt is created as to whether the incident really happened on the alleged date, time and place. Otherwise also a perusal of the site plan shows that the alleged place is said to be in the field of Peer Mian. The adjoining fields are of Asharfi and Sri Ram. None of them was claimed as eyewitness or produced before the Court below. Instead Brij Lal, Nabi Jan Khan and Angne Lal have been produced. Otherwise also a perusal of the site plan shows that the alleged place is said to be in the field of Peer Mian. The adjoining fields are of Asharfi and Sri Ram. None of them was claimed as eyewitness or produced before the Court below. Instead Brij Lal, Nabi Jan Khan and Angne Lal have been produced. In the site plan they do not possess any field or tubewell in and around the alleged place of occurrence. Out of them first two witnesses i.e. Brij Lal and Nabi Jan Khan have not supported the prosecution version as mentioned above. About third witness, namely Angne Lal a discussion is being made herein below. 8. Now we are left only with the corroborative statement of Angne Lal (P.W. 4). As said above he does not possess any field or tube-well near the alleged place of occurrence. He has also admitted this fact in his cross-examination. Therefore, he cannot be said to be a natural witness. He can be termed merely a chance witness. Now it has to be seen as to whether by chance also he could have reasoned on the alleged place of occurrence. As told by him in his cross-examination he was at the tube-well of one Nabi Sher which is at a distance of about half furlong from the tube-well of Sri Ram which has been shown in the site plan towards north-west corner of the place of occurrence. In between there are certain fields. This witness claims to have reached after hearing the sound fire, therefore, he could only see the culprits who were fleeing and by the time he reached the place of occurrence they had already fled upto about 30 feet (10 steps). First of all it is, therefore, doubtful as to whether he really reached at the place of occurrence. For a moment even if it is believed that he reached there, he could not have seen the actual occurrence. Lastly even if it is believed that he saw the occurrence then according to his own description the injured Sri Krishna was fired from front side. This evidence is not in consonance with the medical evidence because no fire-arm injury was found on the chest or front side. Both the fire-arm injuries are admittedly on back side. He is also an interested witness being step father of the injured. This evidence is not in consonance with the medical evidence because no fire-arm injury was found on the chest or front side. Both the fire-arm injuries are admittedly on back side. He is also an interested witness being step father of the injured. Thus, the statements of the injured as well as the aforesaid eyewitness make the prosecution story doubtful that probably the incident did not take place in the alleged manner. If, at least creates a reasonable doubt, the benefit of which goes to the appellant. I have also carefully gone through the judgment in question. This point does not appear to have been addressed in a proper manner. 9. Learned Counsel for the appellant also submits that both the injuries are neither on any vital part of the body not the same have been found to 'be grievous or serious in nature. There does not appear to be any quarrel on this point. But this point would have been relevant if the prosecution could have proved beyond any shadow of doubt that the incident did take place on the alleged date, time and place in the alleged manner wherein the appellant was involved. In that case keeping in view the injuries the conviction could have been made for lesser punishment under relevant provisions instead of section 307, I.P.C. But in the present case, as mentioned hereinbefore, the oral evidence is not in consonance with the medical evidence and it does not inspire confidence. Out of three eyewitnesses two have turned hostile. The remaining sole eye-witness appear to be a chance witness. He is also an interested witness being step father of the injured. It is very much doubtful that he could have reached the alleged place to witness the alleged occurrence after covering such a long distance. Therefore, the appellant is at least entitled to get benefit of doubt. 10. In view of the discussions, made' hereinabove the conviction cannot be upheld. The appellant deserves to be acquitted and accordingly it is so ordered. The appellant is on bail. He need not surrender. His sureties shall stand discharged. 11. The lower Court record alongwith a copy of this judgment be remitted to the Court concerned through Registrar of this Court. Appeal Allowed.