JUDGMENT : RAKESH SAKSENA, J. 1. Appellants have filed this appeal against the judgment dated 24.12.2004 passed by the Additional Sessions Judge (Special Judge), Tikamgarh in Sessions Trial No.331/2002 convicting the appellants under sections 302/34 of he Indian Penal Code and section 27(1) of the Indian Arms Act and sentencing each of them to imprisonment for life with fine of Rs.5000/- and rigorous imprisonment for 3 years with fine of Rs.1000/-. 2. In short, the prosecution case is that on 2.9.2002 in the morning at about 7:30 a.m. on the way between village Khelar and Bangai when Ramjilal Yadav (deceased) was going, four appellants came on two motorcycles and stopped him near the field of Mahedra Ahirwar and fired Kattas (country made pistols) at him. As a result of injuries suffered by him on his head and back he died at the spot. The appellants then field away on their motorcycles. It is said that Prem Singh (PW2) and Lakhan Singh (PW3), who happened to pass that way, witnessed the occurrence and went to the house of Shanker Singh (PW1), The brother of deceased and informed him about the incident. Shanker Singh went at the spot and after seeing the dead body of Ramjilal, along with other persons, went to police out-post, Chakarpur and gave a written report Ex. P/1. On the basis of said report, first information report Ex.P/2 was recorded Inspector Sijouriya (PW14) went at the spot and after conducting inquest, sent the dead body to community Health Centre, Niwadi for postmortem examination. Dr. S.M. Tiwari (PW13), medical Officer, conducted the postmortem examination and found two gun shot injuries and one contusion on the body of Ramjilal, 3. Appellants were arrested and from their possession country made pistols were recovered, After investigation, charge sheet was filed in the Court of Judicial Magistrate, Orchha and the case was then committed for trial. 4. Appellants abjured their guilt and pleaded false implication due to enmity. They also examined Rajjan Yadav (DW1), Uttam Singh (DW2), Jalam Ahirwar (DW3), Darbar Singh (DW4) and Ramdayal (DW5) in their defence. 5. Prosecution examined 16 witnesses. Trial Judge relying mainly on the evidence of eyewitnesses viz. Prem Singh (PW2) and Lakhan Singh (PW3) and finding their evidence supported by the evidence of Shanker Singh (PW1), Dr. They also examined Rajjan Yadav (DW1), Uttam Singh (DW2), Jalam Ahirwar (DW3), Darbar Singh (DW4) and Ramdayal (DW5) in their defence. 5. Prosecution examined 16 witnesses. Trial Judge relying mainly on the evidence of eyewitnesses viz. Prem Singh (PW2) and Lakhan Singh (PW3) and finding their evidence supported by the evidence of Shanker Singh (PW1), Dr. S.M. Tiwari (PW13) and the Investigating Officer A.R. Sijouriya (PW14) held the appellants guilty and convicted and sentenced them as mentioned above. 6. We have heard the learned counsel for the parties. 7. Shri Surendra Singh, learned Senior Counsel for the appellants, submitted that the trial Court gravely erred in placing implicit reliance on the evidence of eyewitnesses 'Prem Singh (PW2) and Lakhan Singh (PW3), Their presence at the spot, at the time of occurrence, was doubtful. The incident had not occurred at about 7:30 a.m. as alleged by the prosecution, the evidence of eyewitnesses was inconsistent with the medical evidence. Appellants had been falsely implicated due to enmity. They were close relatives and belonged to one family. Appellants Azed is Bhagwan Singh's son, appellant Rajkumar @ Munna is his brother's son and Mahendra @ Munna is his sister's son. He submitted that the trial Court committed error in convicting the appellants; they were entitled to be acquitted. On the other hand, Shri S.K.Rai, learned Government Advocate, Justifying the impugned Judgment of conviction, submitted that the evidence of eyewitnesses was reliable and was fully corroborated by the evidence of Shanker Singh (PW1) and the medical evidence of Dr. S.M. Tiwari (PW13). According to him, trial Court rightly held the appellants guilty. 8. We have gone thorough the entire evidence on record. 9. It was no longer disputed that deceased Ramjilal died of homicidal gun shot injuries According to Inspector A.R. Sijouriya (PW14), on receiving the information about the death of Ramjilal, be went at the spot and after issuing notices to witnesses, in their presence, prepared Panchnama (Ex.P/ 4) of his body Dr. S.M.Tiwari (PW13) conducted postmortem examination and found following injuries on the body of Ramjilal:- (i) Lacerated wound over right temporo-parietal region, size 8cm x 1cm x 1cm. Margins irregular, inverted, blackened, direction of wound antero posterior Clotted blood was present. (Wound of entry), (ii) Lacerated wound over occipital region, size 5cm x 5cm x.5cm, margins irregular, everted. Brain substance coming out from the wound. Margins irregular, inverted, blackened, direction of wound antero posterior Clotted blood was present. (Wound of entry), (ii) Lacerated wound over occipital region, size 5cm x 5cm x.5cm, margins irregular, everted. Brain substance coming out from the wound. (Wound of exit), (iii) On opening the scalp and skull, there were multiple fractures of parietal. Temporal bone of right side and occipital bone and membrane of brain were congested, (iv) Lacerated wound behind the right shoulder upper part, size 4cm x lcm x 1.5cm. (Wound of entry). Shape oval and elongated, margins irregular, inverted. Plastic like foreign body drum shape with multiple pellets found in the wound on dissection, muscles in the area were congested sand lacerated. Pellets size was between 1-2 milimetre. (v) Contusion over left shoulder, size 3cm x 1.5cm. All the injuries could be caused by fire arms except injury over shoulder which could be caused by hard and blunt object. Injuries were antemortem in nature. On examination of shirt, there was a whole of about 5cm diameter with charred margin. 10. The cause of death was laceration of brain and head injury and the time of death was about 12 hours. Postmortem report Ex.P/21 was written and signed by Dr. S.M. Tiwari (PW13). It was clearly evident that deceased Ramjilal died of gun shot injuries. 11. Now the question before us is whether the evidence of eyewitnesses Prem Singh (PW2) and Lakhan Singh (PW3) that appellants caused the death of Ramjilal is trustworthy. 12. Learned counsel for the appellants submitted that the evidence of these two witnesses was discrepant and contradictory and was belied by the evidence of Shanker Singh (PW1) and the medical evidence of Dr. S.M. Tiwari (PW13). According to eyewitnesses, all the four appellants had fired gun shots at the deceased, but on postmortem examination only two gun shot injuries were found on his body and according to Dr. Tiwari, semi digested food was found in the stomach of deceased which indicated that deceased had ingested food about 4-5 hours before his death. Therefore, deceased must have died much before 7:30 a.m., the time alleged by the eyewitnesses. 13. Prem Singh (PW2) deposed that at about 7:30 a.m. while he was coming after distributing milk, he saw that all the four appellants came on two motorcycles and intercepted Ramjilal and fired Kattas at him. Therefore, deceased must have died much before 7:30 a.m., the time alleged by the eyewitnesses. 13. Prem Singh (PW2) deposed that at about 7:30 a.m. while he was coming after distributing milk, he saw that all the four appellants came on two motorcycles and intercepted Ramjilal and fired Kattas at him. First Bhagwan Singh and Azad fired Kattas from the side, the shots whereof hit Ramjilal on his temporal region, thereafter Rajkumar and Mahendra fired Kattas, the bullets whereof hit Ramjilal on the back, Similarly, Lakhan Singh (PW3) Stated that near the field of Mahendra Ahirwar, all the four appellants fired Kattas at Ramjilal. First Bhagwan Singh and Azed fired and when Ramjilal fell down, Mahendra and Rajkumar fired at him. Thus, according to these eyewitnesses, four gun shots were fired at Ramijilal. It was not stated that any of the shots fired by the appellants did not hit the deceased. On perusal of the evidence of Dr. S.M. Tiwari (PW13), we find that he categorically stated that he found only two gun shot entry wounds on the body of deceased. One entry wound was on the right temporal region and another was on the back of right shoulder. Apart from these two injuries, he also found a contusion on the left shoulder of deceased. Thus, there is apparent inconsistency between the evidence of eyewitnesses and the medical evidence. 14. Investigating Officer A.R. Sijouriya (PW14) though seized a spring of Katta and an iron bolt from the spot, vide seizure memo Ex.P/6, but he did not find any wads or pellets etc. at or near the place of occurrence which could have given some indication that out of four, two shots allegedly fired by the appellants might have missed the mark., Absence of two more gun shot injuries on the body of deceased assumes importance when it is categorically stated by the eyewitnesses that the shots fired by all the four appellants hit the deceased. In Hasan Ahmad Mai Isha and Others Vs. State of Gujarat, AIR 1980 SC 437 Supreme Court observed "In a trial for offence of murder one of the two eyewitnesses Categorically stated that the accused No.1 fired his gun at the victim and the gun shot injured the victim in his abdomen. In Hasan Ahmad Mai Isha and Others Vs. State of Gujarat, AIR 1980 SC 437 Supreme Court observed "In a trial for offence of murder one of the two eyewitnesses Categorically stated that the accused No.1 fired his gun at the victim and the gun shot injured the victim in his abdomen. The medical evidence, however, did not disclose any gun shot injury in the victim's body the evidence of eyewitnesses was rightly disbelieved by the trial Court." In Thaman Kumar Vs. State of Union Territory of Chandigarh, AIR 2003 SC 3975 Apex Court observed that: "the conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight way be drawn. 15. On examining the evidence of eyewitnesses and the doctor, in the light of the above proposition, we find that the eyewitnesses though deposed that all the four appellants fired gun shots, and the shots hit the deceased, yet only two gun shot injuries were found on the body of deceased. It is, therefore, not possible for us to hold that all the four appellants fired gun shots at the deceased. From the evidence of eyewitnesses, it is also not possible to attribute any particular injury to any particular appellant. 16. Dr. S.M. Tiwari (PW13) found semi digested food in the stomach of deceased, as such he opined that deceased had ingested food about 4-5 hours before his death. From the evidence of eyewitnesses, it is also not possible to attribute any particular injury to any particular appellant. 16. Dr. S.M. Tiwari (PW13) found semi digested food in the stomach of deceased, as such he opined that deceased had ingested food about 4-5 hours before his death. As per prosecution case, incident had occurred at about 7:30 o'clock in the morning, thus the deceased must have taken food at about 2:30-3:30 a.m. Though prosecution has not led any evidence to indicate as to when deceased took meals, yet as a matter of common knowledge it can be assumed that at the most he would have taken meals in the night up to 11-12 o'clock. 17. Uttam Singh (DW2), who happened to be the brother-in-law of deceased, deposed that deceased had stayed at his house till 10-10:30 p.m. in the night and had taken meals there, Next day in the morning, he came to know that Ramjilal had died. There appears nothing in his cross-examination to indicate that he was telling a lie His evidence cannot be disbelieved merely on the ground that he was examined in defence especially when he was a close relative of the deceased. It is also important to note that Dr. Tiwari found Rigor mortis completely set in the body of deceased. According to him, this indicated that deceased had died around 12 hours before the postmortem examination. He had conducted the postmortem examination at about 2:30 p.m. In these circumstances, it seems that the death of deceased must have occurred around 2:30 o'clock in the night. Thus, the medical evidence adduced by the prosecution militates against the evidence of eyewitnesses Prem Singh (PW2) and Lakhan Singh (PW3). 18. Prem Singh (PW2), in para 38 of his deposition, stated that when he was at the culvert of canal, he saw deceased running and being chased by two motorcyclists and thereafter when he reached near the boundary wall of the school, he saw Ramjilal falling down and the appellants firing at him, but he did not notice which of the appellants were driving the motorcycles. According to him, he saw them only getting down from the motorcycles. He admitted that though on way to the house of Shanker Singh (PW1), number of people met him, but he did not tell anybody about the occurrence. According to him, he saw them only getting down from the motorcycles. He admitted that though on way to the house of Shanker Singh (PW1), number of people met him, but he did not tell anybody about the occurrence. Similarly at the house of Shanker Singh, he did not talk to other family members except Shanker Singh. Even Shanker Singh did not tell anything to other family members. This conduct of witness Prem Singh appears unnatural. According to Lakhan Singh (PW3), he also went to the house of Shanker Singh and informed him about the incident, but Shanker Singh (PW1) did not say that Lakhan Singh had come to his house and informed about the occurrence Contrary to the evidence of Prem Singh, Shanker Singh (PW1) deposed that at the time when Prem Singh came and informed him, none of his family members was present there, though they were in the house. He also admitted that he did not inform the incident to rest of his family members. The evidence of Shanker Singh (PW1) appears suspicious for two more reasons, firstly because he tried to suppress the fact that deceased was dealing in commission business of country made liquor and had gone to deposit the money at the liquor shop. In his police statement Ex.D/1, With which he was duly confronted, he had disclosed the above fact and, secondly Shanker Singh tried to suppress the fact that motorcycle of the deceased was found lying near village Khelar. He disowned the version given by him in his police statement Ex.D/1 that the said motorcycle was found lying on way outside Khelar village. Investigating Officer A.R. Sijouriya admitted that he had been informed by Shanker Singh that motorcycle of deceased was lying outside village Khelar, but he did not find the motorcycle there, Neither motorcycle of deceased was found near the place of incident nor it was seized during investigation. 19. Learned counsel for the appellants, on the basis of evidence of Investigating Officer A.R. Sijouriya (PW14) argued that in the course of investigation, he had received information that some persons had seen deceased being chased by two persons who had muffled their faces. He had recorded the statements of Rajendra, Anil and Ramesh which were Ex.D/5, D/6 & D/7 wherein they had disclosed the above fact. These witnesses were however withheld and not examined in the Court. 20. He had recorded the statements of Rajendra, Anil and Ramesh which were Ex.D/5, D/6 & D/7 wherein they had disclosed the above fact. These witnesses were however withheld and not examined in the Court. 20. After carefully scanning and scrutinizing the evidence of eyewitnesses in the light of medical evidence adduced by the prosecution, we are of the view that it was not established beyond doubt that the death of deceased took place at about 7:30 a.m., as alleged by the prosecution. Probability that the deceased was shot dead in the night at about 2:30 or 3:30 a.m. could not be ruled out therefore, the evidence of eyewitnesses that they saw appellants firing at the deceased at about 7:30 o'clock in the morning was not trustworthy, especially in view of the fact that only two gun shot injuries were found on the body of deceased whereas according to them, all the four appellants had fired gun shots at him from a very close range. 21. For the reasons stated above, we are of the considered opinion that prosecution has failed in establishing its case against the accused/appellants beyond doubt and the view taken by the learned Additional Sessions Judge in holding the appellants guilty u/s 302/34 of the Indian Penal Code and section 27(1) of the Indian Arms Act was not correct and deserved to be set aside The conviction and sentence of appellants on both the counts are therefore set aside. They are acquitted. They be released forthwith if not required in any other case. Appeal allowed.