JUDGMENT Rakesh Saksena, J. 1. Appellants have filed this appeal against the judgment dated 26.5.2007 passed by Sessions Judge, Katni in Sessions Trial No. 159/05 and 182/05, respectively against each accused, convicting Appellant Santosh Kumar Tiwari under Section 302 of the Indian Penal Code and to Appellant Rambihari Gautam under Section 302(2) Cr.A. No. 1224/2007 read with Section 114 of the Indian Penal Code and sentencing each of them to rigorous imprisonment for life with fine of Rs. 1000/-. In default of payment of fine, further rigorous imprisonment for one year. 2. In short, prosecution case is that on 25.5.2005, in the evening at about 5:00-5:30 p.m. contractor Manmohan Singh Reel (deceased), along with Pratap Topnani, Prakash Gupta, Pramod Verma and Raju Yadav, was sitting in Trauma Unit of District Hospital, Katni where construction of Trauma Unit building was in progress. The neighbouring building of O.P.D. was being constructed by accused Rambihari Gautam. Rambihari Gautam, from his site, came at the site of deceased and sat there to talk for resolving old disputes going on between them. Gautam gave Rs. 300/-to Santosh Patel and asked him to bring beer. However, deceased stopped him. It is said that after sometime brother-in-law of accused Gautam namely Santosh Kumar Tiwari (accused) came there with a gun. Looking at him, accused Gautam asked him to kill deceased saying that he had harassed him very much, whereupon accused Santosh Tiwari fired his double barrel gun at deceased, the shot whereof hit deceased on his thigh and he fell down. Accused persons then went away and the persons present there took deceased to hospital. Raju Yadav (PW-1) went to police station, Katni and lodged the report Ex.P/1. 3. On the above report, an offence under Section 307/ 34 I.P.C. was registered against the accused persons. On the same day, deceased died in the hospital. Dr. Anita Singh (PW-9) sent an intimation to police post of the hospital about the death of deceased. This intimation was sent to police station, Katni where marg intimation report Ex.P/13 was recorded. Police conducted the inquest proceedings and prepared memorandum Ex.P/2. Dr. Anita (3) Cr.A. No. 1224/2007 Singh gave MLC report Ex.P/9 about the injuries of deceased. Dead body was then sent for postmortem examination. Dr. Anita Singh (PW-9), Dr. P.D. Soni (DW-6) and Dr. This intimation was sent to police station, Katni where marg intimation report Ex.P/13 was recorded. Police conducted the inquest proceedings and prepared memorandum Ex.P/2. Dr. Anita (3) Cr.A. No. 1224/2007 Singh gave MLC report Ex.P/9 about the injuries of deceased. Dead body was then sent for postmortem examination. Dr. Anita Singh (PW-9), Dr. P.D. Soni (DW-6) and Dr. Yeshwant Verma conducted autopsy and vide postmortem report Ex.P/10 found that death of deceased was caused by gun shot injury. Clothes and pellets recovered from the body of deceased were seized. On 26.5.2005 accused Santosh Tiwari was arrested and from his possession double barrel 12 bore gun, cartridges and licence were seized vide seizure memo Ex.P/5. The aforesaid seized articles were sent for examination to Forensic Science Laboratory, Sagar and report Ex.P/18 was obtained. Accused Rambihari Gautam was arrested on 7.9.2005 vide arrest memo Ex.P/22 and a separate supplementary charge sheet was filed against him. After completion of investigation, charge sheet was filed and the case was committed for trial. 4. Learned Sessions Judge framed the charge under Section 302 against accused Santosh Tiwari and under Section 302 read with Section 114 of the Indian Penal Code against accused Rambihari Gautam. Both the accused persons abjured their guilt and pleaded false implication. As per written statements submitted by both the accused persons under Section 313 of the Code of Criminal Procedure, deceased wanted Rambihari Gautam to not to submit tender in respect of building of sub jail. On 3.2.2005 deceased had sent some persons who intimidated him and on 14.3.2005, deceased assaulted him at the office of Executive Engineer of PWD. He had received injuries and he had lodged report with the police in regard to both of the aforesaid incidents. On 25.5.2005, when he went at his site where O.P.D. building was being constructed, at about 4:00 p.m. deceased sent Vikas to call him at his site of Trauma building where he was consuming liquor. On his refusal to go there, Vikas and Pankaj Rai intimidated him and deceased also called him on his (4) Cr.A. No. 1224/2007 mobile. He, from his mobile phone informed his brother-in-law Santosh Tiwari that people of deceased had surrounded him and were demanding Rs. 300/-for liquor. It was further mentioned that those people asked him to write on a paper that he wished to commit suicide. He, from his mobile phone informed his brother-in-law Santosh Tiwari that people of deceased had surrounded him and were demanding Rs. 300/-for liquor. It was further mentioned that those people asked him to write on a paper that he wished to commit suicide. According to him, in the meanwhile, Santosh Tiwari reached there and asked those people to leave him, but deceased tried to snatch the gun of Santosh Tiwari and abused him. In that course, the gun went off accidentally by which deceased suffered injury. It was further alleged that police did not do any investigation on his complaint. Accused persons examined six witnesses in their defence. 5. Learned Sessions Judge, after trial and upon appreciation of evidence adduced in the case by both the sides, found Appellant Santosh Kumar Tiwari guilty of intentionally causing death of deceased by gun shot and held Appellant Rambihari Gautam guilty under Section 302/ 114 of the Indian Penal Code for abetting accused Santosh Tiwari to cause his death. 6. We have heard the learned Counsel for the parties. 7. It is not disputed that deceased died of gun shot injury. It is also reflected from the evidence of Dr. Anita Singh (PW-9) that on 25.5.2005 when deceased was brought to District Hospital, in emergency duty at about 5:50 p.m. she examined his injuries and gave MLC report Ex.P/9. According to her report, there was an entry like gun shot wound on his upper 1/3rd of right thigh on anterio-medial aspect. The injury was caused by gun shot and was dangerous to life. There was bleeding from the wound and general condition of patient was very poor and he was gasping. At about 6:10 p.m. deceased died due to aforesaid injury. She along with Dr. Yeshwant Verma and Dr. P.D. Soni (DW-6) conducted the postmortem examination of the body of deceased and found an oval gun shot wound 3cm x 4.5cm on his right thigh. Margins were inverted. Gun (5) Cr.A. No. 1224/2007 powder like smell was present over the wound. There was blackening on entry part of track of the wound which was directed posteriorly, medially and upward. Muscles were ruptured and femoral vessels and muscles around the track were grossly torn. Some plastic green colour object and 32 blackish metallic irregular shaped pellets were recovered from the muscles. There was no exit wound. There was blackening on entry part of track of the wound which was directed posteriorly, medially and upward. Muscles were ruptured and femoral vessels and muscles around the track were grossly torn. Some plastic green colour object and 32 blackish metallic irregular shaped pellets were recovered from the muscles. There was no exit wound. In their opinion, cause of death was haemorrhage and shock due to gun shot wound. Postmortem report Ex.P/10 was proved by her. Apart from it, Raju Yadav (PW-1) and Pratap Kumar Toknani (PW-2) deposed that in the evening at about 5:00-5:30 p.m. on 25.5.2005, deceased suffered gun shot injury at the hand of accused Santosh Tiwari. They took him for treatment to District Hospital where he succumbed to injuries at about 6:10 p.m. ASI Nandkishore Mishra (PW-7) conducted the inquest of the dead body of deceased. These facts were not challenged from the side of accused. It was thus clearly established that deceased deceased died of gun shot injury. 8. Learned Counsel for the Appellants, however, submitted that the learned Sessions Judge gravely erred in placing implicit reliance on the evidence of alleged eyewitness Raju Yadav (PW-1). His presence on the spot was doubtful. First Information Report Ex.P/1 allegedly lodged by him was ante timed. Other witnesses who were said to have been present on the spot did not support the prosecution case. Counsel submitted that from the circumstances emerging out from the evidence on record, it was not established that Appellant Rambihari Gautam abetted Appellant Santosh Kumar Tiwari to fire at deceased. In fact deceased and his associates had forcibly carried Appellant Rambihari Gautam to the place where deceased was sitting. Therefore, when Santosh Tiwari came to rescue, in a scuffle, his gun went off accidentally resulting an injury (6) Cr.A. No. 1224/2007 on the thigh of deceased. Learned Counsel further submitted that the evidence of Raju Yadav (PW-1) was inconsistent with the medical evidence, therefore, he was not a reliable witness. Learned Counsel for the State, on the other hand, justified and supported the conviction of Appellants. 9. We have gone through the entire evidence on record. 10. Raju Yadav (PW-1) stated that on 25.5.2005 at about 5:00 p.m. deceased, Vikas Gupta, Pratap Toknani and Pramod Sharma were sitting at the site where O.P.D. of the hospital was being constructed. He was the clerk of deceased and was also present there. 9. We have gone through the entire evidence on record. 10. Raju Yadav (PW-1) stated that on 25.5.2005 at about 5:00 p.m. deceased, Vikas Gupta, Pratap Toknani and Pramod Sharma were sitting at the site where O.P.D. of the hospital was being constructed. He was the clerk of deceased and was also present there. Adjacent site was of accused Rambihari Gautam. Rambihari Gautam was sitting at his site. Vikas Gupta suggested deceased to call Gautam and to talk about resolving the past differences. On being asked, he went to call Rambihari Gautam, whereupon after about 5-7 minutes Rambihari came at the place of deceased. While they were discussing their old differences, Rambihari Gautam asked Santosh Patel, another clerk of deceased to bring beer and handed over Rs. 300/-to him but deceased refused for it. Suddenly, accused Santosh Tiwari came there from the adjacent site with a double barrel gun. As soon as he reached there Rambihari Gautam asked him to kill deceased as he had harassed him very much. Deceased stood up but in the meantime accused Santosh fired his gun which hit deceased on his right thigh. He fell down. Accused persons ran away. According to him, he and other persons present at the spot picked up the deceased and took him to hospital. He then went to lodge the report. On the same day, deceased died in the hospital. 11. Learned Counsel for the Appellants submitted that presence of Raju Yadav (PW-1) at the spot was doubtful, as his evidence was belied by the fact that Dr. Anita Singh (PW-9) stated that deceased was brought to hospital by ASIR.K. Patel and that (7) Cr.A. No. 1224/2007 Munna Singh Thakur (PW-6) and ASI Nandkishore Mishra (PW-7) stated that when they reached at the spot no one was there. It is true that Dr. Anita Singh (PW-9) stated that while she was posted in emergency duty in district hospital, ASIR.K. Patel brought deceased with the requisition form. It has also been mentioned in her MLC report Ex.P/9 that patient was brought by ASIR.K. Patel. However, from the evidence of Raju Yadav, it appears that he and other persons carried deceased to hospital and put him on the table and after handing over the patient to lady doctor he went to police station to lodge the report. It has also been mentioned in her MLC report Ex.P/9 that patient was brought by ASIR.K. Patel. However, from the evidence of Raju Yadav, it appears that he and other persons carried deceased to hospital and put him on the table and after handing over the patient to lady doctor he went to police station to lodge the report. He categorically denied that ASIR.K. Patel reached at the place of occurrence and took deceased to hospital. It is also important to note that ASIR.K. Patel was not examined in the Court. Apart from it, from the evidence of Investigating Officer Brajesh Bhargav (PW-15), it appears that when Raju Yadav came to police station, he recorded the first information report and sent intimation about the incident to other officers by mobile phone. When he reached the hospital, deceased was already in the hospital. ASIR.K. Patel had gone to hospital with him and had given the requisition form for the medico legal examination of injured. Thus, there appears no substance in the submission made by learned Counsel for the Appellants. 12. Munna Singh Thakur (PW-6), who was working at the cycle stand of the hospital and Nandkishore Mishra ASI (PW-7), who was posted at police chowki in the campus of hospital, stated that they heard the sound of fire in the campus of the hospital. When they reached at the place of occurrence they found deceased lying there in injured condition. They got him picked up and sent to hospital. In cross-examination, Munna Singh Thakur stated that when he reached there deceased was lying alone, he and ASI Mishra could not lift him but in the meantime clerk of deceased viz. Raju brought (8) Cr.A. No. 1224/2007 the labour. Nandkishore Mishra (PW-7) though stated that he found deceased lying alone at the spot and he called other workers and labourers to bring stretcher, but he admitted that he did not remember as to when Raju Yadav came at the spot. Thus, it cannot be held that presence of Raju Yadav (PW-1) at the spot was doubtful. It is quite natural that after firing he might have left the spot for arranging the people or stretcher etc. for carrying the injured to nearby hospital. 13. The presence of Raju Yadav (PW-1) at the spot stands corroborated from the evidence of Pratap Toknani (PW-2) who was also present with the deceased at his site. It is quite natural that after firing he might have left the spot for arranging the people or stretcher etc. for carrying the injured to nearby hospital. 13. The presence of Raju Yadav (PW-1) at the spot stands corroborated from the evidence of Pratap Toknani (PW-2) who was also present with the deceased at his site. Though this witness did not support the prosecution case against accused Rambihari Gautam and was declared hostile, yet he categorically stated that at the time of occurrence, he, Vikas Gupta, Pramod Sharma, Raju Yadav and Santosh Patel were present with deceased. Deceased had sent Raju Yadav to call accused Rambihari Gautam from his site. When Rambihari Gautam and deceased were talking about their differences, suddenly after about 15-20 minutes suddenly accused Santosh Tiwari reached there with the gun. Looking at him, deceased stood up but Santosh fired gun at him. Though this witness did not speak against Appellant Rambihari Gautam, but from his evidence, it is established that Raju Yadav (PW-1) was present at the spot and had witnessed the occurrence. 14. Similarly Santosh Kumar Patel (PW-3), Pramod Sharma (PW-12) and Vikas Gupta (PW-13) also admitted that Raju Yadav was present with deceased at the time of occurrence. Though Pramod Sharma and Vikas Gupta did not support the prosecution case and were declared hostile, yet they admitted that just before the occurrence when they were with deceased, Raju Yadav was also present and deceased had sent him to call accused Rambihari (9) Cr.A. No. 1224/2007 Gautam. In view of the above evidence, we are of the view that Raju Yadav (PW-1) was present at the place of occurrence. 15. Learned Counsel for the Appellants contended that a police chowki was located in the campus of the hospital and ASI Nandkishore Mishra (PW-7) was posted in it, yet Raju Yadav (PW-1) did not inform about the incident there and went to police station Katni which is situated about half a kilometre from the hospital. It indicated that the report was made ante timed. In our opinion, it cannot be expected from a common man that he should follow a particular course of conduct. Every person reacts differently in the given circumstances according to his intellect and wisdom. It indicated that the report was made ante timed. In our opinion, it cannot be expected from a common man that he should follow a particular course of conduct. Every person reacts differently in the given circumstances according to his intellect and wisdom. According to ASI Nandkishore Mishra, when deceased was taken to hospital, he had sent an information to police Kotwali on wireless and after about 5-10 minutes police had reached there. Station officer Bhargav and T.I. had also reached there. 16. Learned Counsel for the Appellants pointed out that Raju Yadav (PW-1) though stated that deceased sent him to call Rambihari Gautam from his site and Gautam came at the place where deceased, Vikas Gupta, Pratap Toknani and Ors. were sitting, but this fact was not mentioned by him in the first information report Ex.P/1. According to first information report, contractor Gautam himself reached there and talked for resolving the past differences. It is true that Raju Yadav (PW-1) could not explain this omission in the first information report Ex.P/1, but merely from that, whole of his evidence cannot be discarded. 17. Learned Counsel for the Appellants next urged that the evidence of Raju (PW-1) was not trustworthy because it was inconsistent with the medical evidence. Raju Yadav stated that as soon as accused Santosh Tiwari came, accused Rambihari Gautam asked him to kill deceased, whereupon deceased stood up from the (10) Cr.A. No. 1224/2007 chair and Santosh Tiwari fired his gun at him which hit on his thigh. In these circumstances, the direction of the gun shot wound ought to have been downwards but according to Dr. Anita Singh (PW-9) and Dr. P.D. Soni (DW-6), the direction of the wound was from downwards to upwards and the injury was caused from very close range as plastic wads were found in the wound. Dr. Soni (DW-6) stated that if two persons stand in front of each other and one fires gun on the thigh of other, barrel of the gun would have to be tilted downwards and in such circumstances, the direction of the wound would be from upwards to downwards. 18. Learned Counsel for the Appellants placed reliance on Awadhesh and Anr. Dr. Soni (DW-6) stated that if two persons stand in front of each other and one fires gun on the thigh of other, barrel of the gun would have to be tilted downwards and in such circumstances, the direction of the wound would be from upwards to downwards. 18. Learned Counsel for the Appellants placed reliance on Awadhesh and Anr. v. State of Madhya Pradesh [1988 C.L.R. (S.C.) 269] wherein it was observed "in the opinion of the doctor, the person who caused injuries to the deceased was at higher level than the deceased, this is wholly inconsistent with the testimony of eyewitnesses. Though medical expert's opinion is not always final and binding, but in the instant case it corroborates other circumstances which indicate that the eyewitnesses had not seen the actual occurrence." It was a case in which trial Court had acquitted the accused, but the High Court in an appeal against acquittal had set aside the order of acquittal and convicted accused under Section 302/ 34 I.P.C. In Om Prakash v. State of U.P. AIR 2009 SC 944 ] the evidence of eyewitnesses was discarded on the ground that according to eyewitnesses at least 7 shots were fired by the accused persons and three shots had hit the person of deceased. If it was so, more than one gun must have been used. It was not established that the gun used by the Appellant was used in the incident. By examination of Forensic Science Laboratory no blackening or charring at entry point was found on the dead body, whereas according to the evidence of eyewitnesses all the accused fired at the (11) Cr.A. No. 1224/2007 deceased from close range. In these circumstances, accused was acquitted. In Mohan Singh and Anr. v. State of M.P. [ 1999 (2) JLJ 171 ], Apex Court appreciating the effect of inconsistency between the medical evidence and the ocular evidence observed "The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the Courts have been removing the chaff from the grain. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the Courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eyewitnesses including the medical evidence of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defense case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans clarity, corroboration of witnesses and (12) Cr.A. No. 1224/2007 overall, the conscience of a judge evoked by the evidence on record. So Courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt." 19. In the light of the above legal proposition, when we examine the evidence of Raju (PW-1), we find that when accused Rambihari Gautam reached at the site of deceased, both were talking. At that time, deceased and other persons were sitting. After sometime when accused Santosh Tiwari reached there, it is said, deceased stood up and then Santosh Tiwari fired gun on his thigh. At that time, deceased and other persons were sitting. After sometime when accused Santosh Tiwari reached there, it is said, deceased stood up and then Santosh Tiwari fired gun on his thigh. On perusal of first information report Ex.P/1, it appears that original prosecution case, as given by Raju (PW-1), was that while deceased and accused Gautam were talking, accused Santosh Tiwari reached there and on the exhortation by accused Gautam, fired at deceased which hit him on his thigh. It was no where stated that deceased stood up and then Santosh Tiwari fired at him. Before the Court, however, Raju (PW-1) deposed that deceased was standing while shot was fired by accused Santosh Tiwari. Though we are conscious that first information report Ex.P/1 is not a substantive piece of evidence, yet in the circumstances of the case, it appears to us that Raju (PW-1), for some reason best known to him, improved the story and stated that gun shot hit deceased when he was standing. It seems that the shot was fired at deceased while he was sitting. In case gun shot hits from the front side at the thigh of a person when he is in sitting posture, the direction of the wound would appear downwards to upwards. The evidence of Dr. Anita Singh (PW-9) and Dr. P.D. Soni (DW-6) cannot be held to be incorrect, but in view of their evidence, we feel that Raju (PW-1) did not tell truth about the posture of deceased when he was hit by the shot. Yet as discussed above, we have no measure of doubt about the presence of Raju (13) Cr.A. No. 1224/2007 (PW-1) at the spot. In our opinion, aforesaid variance between medical evidence and the evidence of eyewitness is insufficient to discard whole of the prosecution case. It is further because both the accused persons in their written statements under Section 313 of the Code of Criminal Procedure admitted that the shot fired from the gun of Santosh Tiwari hit the deceased on his thigh, therefore, we have absolutely no doubt in holding that the gun shot injury found on the body of deceased was caused by Appellant Santosh Kumar Tiwari. 20. 20. Learned Counsel for the Appellants contended that the evidence of Raju (PW-1) was at least not reliable on the point that Appellant Rambihari Gautam abetted or exhorted Appellant Santosh Tiwari to fire or kill the deceased. He argued that it is on record that relations between the deceased and accused/Appellant Rambihari Gautam were strained and in the past deceased and his associates had threatened and assaulted him. He had reported the matter to police, therefore, there was no reason for Rambihari Gautam to have willingly and voluntarily gone at the site of deceased and talked to him. In support of his contention, learned Counsel drew our attention to Ex.D/4-C, the requisition, whereby accused Rambihari Gautam was sent by police for medical examination on 14.3.2005. It is mentioned in the requisition that deceased and Vikas Gupta assaulted Gautam by fists and kicks causing injuries to him. It is further revealed by MLC report Ex.D/4 that Rambihari Gautam suffered injuries on 14.3.2005. 21. On perusal of first information report Ex.P/1, it appears that Appellant Rambihari Gautam himself went to talk to deceased and requested him to forget the old matters and offered beer to him and gave Rs. 300/-to Santosh Patel for bringing beer, but the version of Raju Yadav (PW-1) before the Court was that Vikas Gupta asked (14) Cr.A. No. 1224/2007 deceased to call contractor Gautam and to sort out old differences and then deceased asked Raju Yadav to call Rambihari Gautam. This deviation by Raju Yadav creates some suspicion about the genesis of the occurrence. According to Appellants, as stated by them, in 313 Code of Criminal Procedure statements, Raju Yadav repeatedly came to call him but he did not go to talk to deceased. Thereafter, Vikas came to him and threatened him that if he did not go and talk to him it would not be good for him. According to him, he apprehended danger as number of persons were present with the deceased, therefore, he informed the situation to accused Santosh Tiwari on mobile phone. It was further stated by Gautam that when he reached near deceased, he showed him a Katta and took out Rs. 300/-from his pocket and gave to Santosh Patel to bring liquor. They also compelled him to write a note that he wished to commit suicide, but he did not do so. It was further stated by Gautam that when he reached near deceased, he showed him a Katta and took out Rs. 300/-from his pocket and gave to Santosh Patel to bring liquor. They also compelled him to write a note that he wished to commit suicide, but he did not do so. In the meantime, Santosh Tiwari reached there and tried to rescue him, but deceased tried to snatch his gun. In this course, his gun went off accidentally. When we look at the evidence of Pratap Toknani (PW-2), he too stated that deceased sent Raju Yadav to call Rambihari Gautam and when Rambihari Gautam and deceased were talking, after about 15-20 minutes, suddenly Santosh Tiwari reached there with gun and when deceased stood up, fired the gun at him which hit on his thigh. This witness did not say that Appellant Santosh Tiwari fired gun on the exhortation of Appellant Rambihari Gautam. He was declared hostile, however, in cross-examination, he admitted that the manner of talking of deceased with Gautam was tough and when Appellant Santosh Tiwari reached there, he told to deceased that it was enough and they should leave Gautamji. 22. Learned Counsel for the Appellants drew our attention to the evidence of Diwakar Tiwari (PW-5) who deposed that Raju Yadav went to call Rambihari Gautam from his site, but he did not come. (15) Cr.A. No. 1224/2007 Then some boys accompanied Raju Yadav and threatened Gautam and thereafter deceased himself along with 4-5 persons went at the site of Gautam. Deceased demanded money from him for the liquor and took out Katta from his pocket. These persons forcibly took Gautam to the site of deceased. They compelled Gautam to write something and manhandled him also. Thereafter, he heard sound of fire. This witness was not specifically declared hostile, but public prosecutor re-examined him. He was confronted with his police statement Ex.P/22 wherein he did not disclose the aforesaid facts. Though on a critical scrutiny of the evidence of this witness, we do not find him to be a wholly reliable witness, yet his evidence throws a cloud of suspicion on the prosecution evidence in respect of the fact that Appellant Rambihari Gautam voluntarily went to talk to deceased and exhorted/abetted Appellant Santosh Tiwari to kill the deceased. Though on a critical scrutiny of the evidence of this witness, we do not find him to be a wholly reliable witness, yet his evidence throws a cloud of suspicion on the prosecution evidence in respect of the fact that Appellant Rambihari Gautam voluntarily went to talk to deceased and exhorted/abetted Appellant Santosh Tiwari to kill the deceased. In these circumstances, we find it not established beyond doubt that Appellant Rambihari Gautam abetted Appellant Santosh Kumar Tiwari to fire at deceased. 23. Learned Counsel for the Appellants lastly urged that even if it is found that the gun shot fired by Appellant Santosh Tiwari resulted in death of deceased, it was either accidental firing or an unintentional sudden act, just on the spur of the moment. Had he intended to cause death of deceased, he could have fired the gun shot on any vital part of the body of deceased, as it was a case of close range firing. 24. From the evidence of Raju (PW-1) and Pratap Toknani (PW-2), it appears that it was deceased himself who had called Appellant Rambihari Gautam to his site. Admittedly, Rambihari Gautam was at his own site. It is on record that relations between them were not cordial and deceased had assaulted Gautam in the past over the dispute about tenders. In these circumstances, it seems (16) Cr.A. No. 1224/2007 improbable that Gautam would himself go to talk to deceased who was in the company of his associates, and therefore the possibility of there being some compulsion on Rambihari Gautam to go at the site of deceased cannot be ruled out. Rambihari Gautam in his statement under Section 313 Code of Criminal Procedure admitted that he had informed accused Santosh about his apprehension that some untoward incident may take place. Therefore, it appears natural that Santosh, who happened to be the brother-in-law of Gautam, reached at the spot. 25. It was though stated by accused Gautam that he was manhandled by the deceased and his associates and that he had lodged a report in that regard, yet it was not substantiated by any evidence. Therefore, it appears natural that Santosh, who happened to be the brother-in-law of Gautam, reached at the spot. 25. It was though stated by accused Gautam that he was manhandled by the deceased and his associates and that he had lodged a report in that regard, yet it was not substantiated by any evidence. However, learned Counsel for the Appellants from the evidence of Investigating Officer Brajesh Bhargav (PW-15) pointed out that on 9.6.2005 Rambihari Gautam had filed a private complaint in the Court of Chief Judicial Magistrate and on non-compliance of the order of Chief Judicial Magistrate, had filed a petition before the High Court. C.J.M. had sent the complaint for investigation to station officer, Katni under Section 156(3) Cr.P.C., but since he had been transferred he did not know as to what happened in that case thereafter. Learned Counsel for the Appellants failed to explain why these documents were not produced by the accused in the Court. Be that as it may, it gives some indication that accused Gautam had not gone at the site of deceased in pleasant or happy circumstances. There is absolutely no evidence on record to indicate that gun wielded by Appellant Santosh Tiwari went off accidentally in the scuffle. The only inference, in our opinion, could be that finding his brother-in-law surrounded by the persons, who had assaulted him in the past, suddenly Appellant Santosh Tiwari fired his 12 bore gun on the thigh of deceased. It can, however, be inferred that Appellant Santosh did not intend to cause death of deceased otherwise he (17) Cr.A. No. 1224/2007 could have aimed the gun on any vital part of his body. Thigh cannot be said to be a vital part of the body. It cannot be expected of a common man to know that there lies a femoral artery in thigh, injury to which may prove fatal. In these circumstances, we are of the considered opinion that trial Court committed error in holding Appellant Santosh Kumar Tiwari guilty for the offence under Section 302 of the Indian Penal Code. However, since, Appellant used a deadly weapon like gun, it can be readily inferred that he knew that by his act he was likely to cause death or to cause such bodily injury to deceased as was likely to cause his death. 26. However, since, Appellant used a deadly weapon like gun, it can be readily inferred that he knew that by his act he was likely to cause death or to cause such bodily injury to deceased as was likely to cause his death. 26. In view of the foregoing discussion, we are of the opinion that trial Court committed error in convicting Appellant No. 1 Santosh Kumar Tiwari under Section 302 of the Indian Penal Code. Accordingly, his conviction and sentence under Section 302 I.P.C. is set aside and instead he is convicted under Section 304 Part II of the Indian Penal Code and sentenced to rigorous imprisonment for seven years and to pay fine of Rs. 3000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for a period of 6 months. Conviction and sentence of Appellant No. 2 Rambihari Gautam under Section 302 read with Section of the Indian Penal Code is set aside. He is acquitted. 27. Appeals partly allowed.