JUDGMENT Being aggrieved by the order of conviction and sentence passed by the Principal Sessions Judge, Kolar, in S.C. No. 37 of 1995 by order dated 11-9-2003. The appellant has filed this appeal challenging the order of conviction and sentence. 2. The appellant and eight others were charge-sheeted by the Kolar Rural Police for the offences under Sections 143, 148, 447, 324, 114 and 302 read with Section 149 of the Indian Penal Code, 1860 and Section 27 of the Arms Act, 1959, alleging that on 2-8-1993 at about 1.00 p.m. at Khadripura Village, Kolar Taluk the accused forming themselves into an unlawful assembly committed the offence of trespass into the property bearing Sy. No. 44/3 at Khadripura Village and further being the members of the unlawful assembly, armed with deadly weapons with the common object of committing the murder of Authaulla Sheriff and C.W. 1-Pyarejan (P.W. 1) with clubs and caused hurt thereby were charged for committing offence under Section 324 read with Section 149 of the IPC. Further, it is the charge against accused 1 that on the said date, time and place he has caused the death of Authaulla Sheriff with the SBBL gun and therefore they are alleged to be guilty of offence under Section 302 read with Section 149 of the IPC and Section 27 of the Arms Act. 3. The prosecution in order to prove guilt of the accused, examined in all 15 witnesses, got marked Exs. P. 1 to P. 15 and produced M.O. 1-SBL gun and M.Os. 2 to 11 to prove the case. The defence of the accused was total denial and they have got marked Ex. D. 1-the portion of the statement of P.W. 4 to the police. 4. After hearing the prosecution and defence, the learned Sessions Judge convicted accused 1 (appellant herein) guilty of the offence under Section 304, Part II of the IPC and under Section 27 of the Arms Act, and sentenced him to undergo Simple Imprisonment for two years for the offence punishable under Section 304, Part II of the IPC and further sentencing him to undergo Simple Imprisonment for period for three years and to pay a fine of Rs. 5,000/- and in default to undergo imprisonment for six months, for the offences as per Section 27 of the Arms Act while acquitting accused 2 to 8 of all the offences. 5,000/- and in default to undergo imprisonment for six months, for the offences as per Section 27 of the Arms Act while acquitting accused 2 to 8 of all the offences. It is accused 1 who has come in appeal before this Court. 5. Heard Sri Dinesh Kumar, Advocate for the appellant and Sri A.V. Ramakrishna, High Court Government Pleader, for the State and perused the material on record. 6. It is the case of the prosecution that accused 1-Chotesab is brother-in-law of Pyarejan. In other words, P.W. 1 and the wife of accused 1 are direct brother and sister, they being children of late Mehaboobi. The land bearing No. 44/3 of Khadripur Village measuring 2 acres 20 guntas stood in the name of late Mehaboobi and that she died on 10-1-1985. It appears that a dispute arose between P.W. 1 and his sister that is wife of accused 1, in connection with partition of the said land. It is the contention of the appellant and his wife that the deceased Mehaboobi had left a Will giving equal share to her daughter and also to P.W. 1. By virtue of the alleged Will, the appellant and his wife started interfering with the possession of the said land. Admittedly, there were civil disputes between them before the Civil Court. Accused 3 to 5 are the sons of accused 2. The deceased Authaulla Sheriff is the brother-in-law of P.W. 1-Pyarejan. In this background on 2-8-1993 at about 6.00 am. P.W. 1 found accused 1 to 5 ploughing the land bearing Sy. No. 44/3. P.W. 1 went and enquired them. Accused 2 hit him and dragged him out of the field. Immediately he rushed to Kolar and informed to deceased Authaulla Sheriff and on his advise he went and gave a complaint to the Rural Police Station at Kolar. The police told him that they would take action. Therefore, he went to Government hospital, Kolar, took treatment and he was going back to the village. On his way he met deceased Authaulla Sheriff and both of them went to Khadripura. They complained about the illegal acts of the accused to C.Ws. 2, 4, 5, 10, 14, 16 and others and requested them to render justice. Thereafter he again went to the said land along with the deceased Authaulla Sheriff at about 12.45 p.m. The other witnesses mentioned above followed him. They complained about the illegal acts of the accused to C.Ws. 2, 4, 5, 10, 14, 16 and others and requested them to render justice. Thereafter he again went to the said land along with the deceased Authaulla Sheriff at about 12.45 p.m. The other witnesses mentioned above followed him. The accused persons were cultivating the said land. On seeing him, accused 6 to 8 came and caught hold of him and pushed him down. P.W. 1 sustained pain on his left leg. Immediately, the deceased Authaulla Sheriff came running, accused 7 and 8 beat the deceased. Accused 1 on seeing them at a distance of about 25 to 35 feet asked his wife to bring the gun. He took the gun. Immediately, the deceased Authualla Sheriff intervened and requested accused 1 not to fire. Ignoring his request, Accused 1 fired at deceased Authaulla Sheriff. He received bullet injuries and fell on the ground and sustained bleeding injuries. P.W. 3 came running and took the gun from accused 1. Authaulla Sheriff died at the spot. 7. The prosecution in• order to prove its case, examined Pyarejan-P.W. 1 and he has stated before the Court regarding the incident in question in detail. He is an eye-witness who is also injured in this case. On examination by P.W. 14-Dr. P. Kasthuri she found the tenderness over right lower limb on the person of P.W. 1. P.W. 2-Noor Ahamed, also an eye-witness, turned hostile to the prosecution case. P.W. 3-Syed Abdul Azeez brother of P.W. 2 and close relative of Mehaboobi, who is retired constable has stated about the dispute between the parties. He has also stated that accused 1 took single barrel gun from his wife and shoot at the deceased. The deceased fell down and died. However, the prosecution has treated him hostile. P.W. 4-Syed Riyaz Ahmed is the son of P.W. 3. He has spoken that accused 1 was having double barrel gun and that he saw shooting the deceased and deceased died at the spot. He has further stated that the galata was going in Sy. No. 44/3 and noticed the wife of accused 1 at the spot. He has also stated that accused 1 and his wife, P.W. 1 and the deceased were at the spot. He has further stated that the galata was going in Sy. No. 44/3 and noticed the wife of accused 1 at the spot. He has also stated that accused 1 and his wife, P.W. 1 and the deceased were at the spot. In the cross-examination he has stated that the wife of accused 6 handed over double barrel gun to first accused at the time of the incident. 8. P.W. 5 is an eye-witness who turned hostile to the case of the prosecution. P.W. 6 is signatory to Ex. P. 6 to the inquest report. P.W. 7-Dr. Byra Reddy, conducted the post-mortem on deceased Authaulla Sheriff. He found in all 27 pellets in the body of the deceased and cause of death was due to shock and hemorrhage as a result of injuries to internal organs. P. W. 8 is Village Accountant who has stated that Sy. No. 44/3 is in the name of Majeebi wife of Chotesab. P.W. 9 is K Narasimha Murthy, Police Constable. He was deputed to watch the dead body and has taken care of the dead body and handed over the same to the relatives. P.W. 10-Muni Narayanappa, the eye-witness bas turned hostile to the prosecution case. P.W. 11-Shafiulla Sheriff has not supported the case of the prosecution. P.W. 12 is another police constable who has carried the sealed article to the FSL. P. W. 13 is the wife of accused 1 and has turned hostile to the prosecution case and it is elicited in the cross-examination of P.W. 13 that the land bearing Sy. No. 44/3 has been given to her under a Will by her mother and that they were cultivating the land since 20 years prior to the incident. P.W. 14 is Dr. Kasthuri who has examined P.W. 1 and found that there was tenderness over right lower limb. P. W. 15 is FSL Assistant Director of Forensic Laboratory, Bangalore who has examined M.O. 1-gun and pellets seized in this case. He has stated in his cross-examination that he cannot say with precision as to whether the pellets examined by him were ejected from the gun-M.O. 1 produced before him. He has further stated that if a gun like M.O. 1 is used to fire at a distance of about 25 ft., the persons who are standing next to the deceased person are also likely to get injured by the pellets. 9. He has further stated that if a gun like M.O. 1 is used to fire at a distance of about 25 ft., the persons who are standing next to the deceased person are also likely to get injured by the pellets. 9. The accused-appellant in his 313 statement denied the case of the appellant and produced the document showing that they are cultivating the land he has not used the gun nor fired bullets and further stated that he was in the hospital for about 18 days. 10. From the material placed by the prosecution, it is to be seen whether the case made out before the learned Sessions Judge is probable or not. It could be seen at the very outset, that the property where the incident took place was belonging to the wife of the appellant-Majeebi. Secondly, the prosecution is not very clear as to whether double barrel gun or single barrel gun was used by the appellant. Thirdly it is the case of P.W. 1 that along with him 15 to 20 persons had come near the scene of offence. It is the case of the prosecution that there were many people from the side of the accused also. Further there is discrepancy as to whether the wife of accused 1 or wife of the accused 6 who had hidden the gun in burka and handed over to the accused to shoot at the deceased. P.W. 13-Majibi is the wife of appellant. It is not suggested to her when she was in the witness-box that she had handed over M.O. 1 to her husband accused 1. The situation indicates that there was quarrel between accused party and deceased party at the time when appellant is alleged to shot the gun. Further according to the FSL report if a gun is used to shoot the persons beyond distance 6 feet there is possibility of pellets injuring other persons standing by the side of deceased. In this case no other persons than the deceased have received any pellet injury, though, according to Dr. Byra Reddy more than 27 pellets were found in the body of the deceased. In the circumstances, it is clear that the genesis of crime has not been properly placed before the Court by the prosecution and the same is suppressed by the prosecution. 11. Byra Reddy more than 27 pellets were found in the body of the deceased. In the circumstances, it is clear that the genesis of crime has not been properly placed before the Court by the prosecution and the same is suppressed by the prosecution. 11. Under the circumstances I find it unsafe to rely on the evidence of the prosecution witnesses which is ambiguous and unclear. 12. Further the Trial Court has not believed the prosecution version insofar as accused 2 to 8 is concerned and acquitted them of all the charges. 13. I hold that the evidence produced by the prosecution is not clear and cogent. There is suppression of the real facts leading to the incident. Therefore, I hold that the order of conviction passed by the learned Sessions Judge is not proper. 14. Therefore, the appeal is allowed. The order of conviction passed against the appellant is set aside. The appellant is acquitted of the offences levelled against him. Bail bonds, if any, executed by the• appellant is cancelled. The fine amount paid, if any, shall be refunded to the appellant.