JUDGMENT 1. - By way of this D.B.Criminal Appeal No.89/2004 appellants Mahaveer Prasad s/o Manphol Ram and Manphol Ram s/o Sada Sukh, b/c Suthar Bishnoi, r/o Chak 2D, Chhoti Dhani, Sadhuwali, District Sriganganagar, have challenged the judgment and order of sentence passed in Sessions Case No.31/2003 by which the learned Additional District & Sessions Judge ( Fast Track), Sriganganagar, held the accused appellants guilty for the offence under section 302/34 and 307/34 IPC and awarded the sentence to each of the appellant for offence under section 302/34 IPC to life imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo six months' rigorous imprisonment and for the offence under section 307/34 IPC, to undergo seven years' rigorous imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo six months' rigorous imprisonment, respectively and accused appellant Manphol s/o Sada Sukh was further held guilty for offence under section 27 of the Arms Act and has been awarded sentence for three years' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine, to further undergo three months' rigorous imprisonment. 2. The brief facts of the prosecution story, arising to this appeal are that, on 09.04.2003 the complainant Murari Lal filed a written report in the police Station Jawahar Nagar, Sriganganagar stating that he resides at Chack 2 D Chhoti Sadhuwali Dhani and his land is adjoining to the land of Manphol Sudhar Bishnoi. Several times quarrel took place between them regarding the boundary wall of their lands. On the fateful day, at about 05.00 PM, when he was working in his field along with his brothers Kishan Lal and Banwari Lal, Manphol Ram and his son Mahaveer came on the spot with their tractor. Mahaveer was driving the tractor and Manphol was armed with a double barrel rifle. Complainant's brother Raja Ram also came there from his Dhani. On seeing Raja Ram, Manphol and his son started to abuse them and told them regarding encroachment of their own land. After a hot exchange between them, Manphol and Mahaveer excited on the spot and Mahaveer with a loud voice asked Manphol to shoot. On this, Manphol fired a gun shot on his brother Raja Ram, the fire hit Raja Ram on his chest and he fell down . After a hot exchange between them, Manphol and Mahaveer excited on the spot and Mahaveer with a loud voice asked Manphol to shoot. On this, Manphol fired a gun shot on his brother Raja Ram, the fire hit Raja Ram on his chest and he fell down . Manphol again fired a shot towards them but fortunately they escaped. When they made hue and cry then both of the assailants ran away in their tractor. Raja Ram succumbed to the injuries on the spot. On the basis of this information, a criminal case No.131/2003 was registered at Police Station, Jawahar Nagar and investigation commenced. 3. During the course of investigation the statement of the witnesses were recorded , licenced gun was recovered at the instance of the accused appellant Manpohol Ram, along with cartridges . 4. After usual investigation, a charge sheet was filed in the court of the Judicial Magistrate, Srignaganagar against both the accused appellants, against Manphol Ram under section 302, 307 IPC and against Mahaveer Prasasd under section 302, 307 and 109/34 IPC. The case was committed to the court of Sessions Judge, Sriganganagar, from where it was further transferred for trial to the court of learned Addl.District & Sessions Judge, (Fast Track), Sriganganagar. 5. Accused Manphol Ram was charged for offence under section 302 , 307 IPC and section 27 of the Arms Act and accused Mahaveer Prasad was charged for offence under section 302/34, 304/34 and 114/302 IPC, to which the accused did not plead guilty and claimed to be tried. 6. Prosecution examined as many as 13 witnesses , namely, PW/1 Murari Lal, PW/2 Banwari Lal, PW/3 Mohan Lal, PW/4 Dr.B.S.Sharma, PW/5 Hetram, PW/6 Madan Lal, PW/7 Raghuvir Singh, PW/8 Krishna Kumar, PW/9 Sushil Kumar, PW/10 Inder Lal, PW/11 Puran Singh, PW/12 Amar Singh, and PW/13 Avtar Singh. The prosecution also adduced 71 documents in evidence. The incriminating evidence adduced against the accused was put to them for explanation under section 313 Cr.P.C. Both the accused appellants did not examine any witness in their defence, but while explaining the incriminating evidence accused appellant Manphol stated that Raja Ram was killed by some unknown person and due to the enmity of right of way, he was falsely implicated along with his only son Mahaveer. The recovery of the gun, as well as cartridges, was falsely shown by the investigating officer and accused Mahaveer was not present at the spot. 7. After hearing both the parties, the learned trial court found both the accused appellants guilty for the above offences and awarded the sentence as indicated above. 8. The prosecution, to prove the offence charged with, examined PW/1 Murari Lal and PW/2 Banwari Lal as eye witnesses and both the eye witnesses deposed about the incident that took place on 09.04.03. 9. PW/1 Murari Lal, who is the brother of deceased Raja Ram, deposed that on 09.04.03 in the evening at 05.00 PM he, along with his brothers Kishan Lal, Banwari Lal and Raja Ram, were working in their field. At that time, accused appellants Mahaveer and Manphol Ram came on an "ishar" tractor. Mahaveer was driving the vehicle and Manphol Ram was sitting on the mudguard of it. Manphol Ram was armed with a double barreled gun. His brother Raja Ram came from the Dhani. Accused appellant Manphol Ram and Mahaveer started to abuse them and then Mahaveer provoked Manphol Ram to fire, to end the dispute for ever. Manphol Ram fired a gun shot at Raja Ram. That hit at the chest of Raja Ram. Raja Ram fell down on the spot. The second fire was shot by Manphol Ram upon them. He, along with his brother, Krishan and Banwari laid down on the ground , therefore, they escaped the gun shot. Then Manphol Ram and Mahaveer ran away with the tractor and he went to see Raja Ram who was already dead. After that, he informed the City Control Room on telephone. He lodged the report Ex.P/1 to the police. Police recovered the tractor as well as the blood stained soil and prepared the site memo and recovered two empty cartridges. 10. While corroborating the evidence of PW/1 Murari Lal, PW/2 Banwari Lal also deposed the evidence regarding the same incident and he deposed that on 09.04.05, he along with his brother Kishan Lal and Murari Lal was working in the field and at that time Manphol Ram and Mahaveer, accused appellants, came there on red coloured ishar tractor. Mahaveer was driving the tractor bearing No.RJ 13 R 7036. Manphol Ram was sitting on the mud-guard of the tractor. Mahaveer was driving the tractor bearing No.RJ 13 R 7036. Manphol Ram was sitting on the mud-guard of the tractor. Both of them started to abuse the complainant party and Mahaveer provoked Manphol Ram to fire and Manphol Ram fired at Raja Ram. The gun shot hit at the chest of Raja Ram and he fell down. Then Manphol Ram shot the second fire but he, along with Murari and Kishan Lal, laid down on the ground, therefore, they escaped the injury of the gun shot. After that Manphol Ram and Mahaveer went by tractor. Raja Ram died on the spot. After about 15 -20 minutes, police came on the place of occurrence. 11. Another set of evidence, adduced by the prosecution, is regarding the recovery of the gun and empty cartridges found at the place of occurrence by the police and witnesses who reached the scene of occurrence, just after the incident. 12. In this regard PW/3 Mohan Lal deposed that he reached the scene of occurrence just after the incident and he saw both the accused appellants and on enquiry from the persons who were available at the place of occurrence, they stated to him that Manphola Ram and Mahaveer came on the tractor and fired gun shot to Raja Ram, due to which Raja Ram died on the spot. 13. PW/5 Het Ram is also the witness of the same fact. 14. PW/4 Dr.B.M.Sharma deposed that on 10.04.03 as a Medical Jurist of Government Hospital , Sriganganagar,he conducted the autopsy of the dead body of Raja Ram s/o Mani Ram. This autopsy was conducted by the Medical Board consisting of himself, Dr.Subhash Gupta and Dr.V.P.Asija. The post mortem was conducted on 10.04.03 at 11.15 AM and the duration of death was within 24 hours from the time of the post mortem. The following injuries were found on the body of the deceased:- Lacerated wound 2.5''x1.1'' cavity deep 6'' lateral to mid line and 2'' above and lateral to Rt. Nipple. Rt.side chest collor of abrasion with inverted margin .Suggesting wound of entrance - shape oval. Lacerated wound 2''x 1/2''x cavity deep 1'' below the left axilla in mid axillary line on left chest. Margin everted. Suggesting wound of exit. Wound is communicating injury No.1. Lacerated wound 13/4'' x ⅙'' x bone deep left arm med.1''x 1'' below axilla with margin inverted. Suggestion of wound of entrance. (1)Rt. Lacerated wound 2''x 1/2''x cavity deep 1'' below the left axilla in mid axillary line on left chest. Margin everted. Suggesting wound of exit. Wound is communicating injury No.1. Lacerated wound 13/4'' x ⅙'' x bone deep left arm med.1''x 1'' below axilla with margin inverted. Suggestion of wound of entrance. (1)Rt. 2 to 6th ribs fracture (2)Left 3rd to 5th ribs present fracture (3)Fracture left upper end Humerus present. (4)Injuries all ante-mortem in nature. 15. In the opinion of the Medical Board, cause of death of Raja Ram was due to excessive bleeding and shock and injuries sustained in the heart and lungs due to gun shot. Injuries No.1 and 2 were sufficient in the ordinary course of nature, to cause death. 16. PW/7 Raghuvir Singh, PW/8 Krishna Kumar Bhari, PW/10 Indra Lal , PW/11 Puran Singh, PW/12 Amar Singh and PW/13 Avtar Singh are the police witnesses who deposed about the various steps taken by them during the course of investigation, including the arrest of the accused appellants and recovery of gun and other articles and further forwarding the relevant articles to the Forensic Science Laboratory for chemical examination. 17. Counsel for the appellants argued that the entire prosecution story is false and as per the statement of PW/4 Dr.B.M.Sharma, five foreign bodies were found in the body of deceased while conducting the autopsy of the deceased Raja Ram all the five foreign bodies were sealed in a jar and it was marked as "A" and further forwarded to Ballistic Expert through Station House Officer, Jawahar Nagar. 18. As per the deposition of PW/4 Dr.B.M.Sharma, there was an entrance wound on the chest 2'' above right nipple and there was an exit wound on the mid axillary line of left side of the chest and similarly there was an entrance wound of 1.75'' x ⅙'' bone deep and this entrance wound caused the fracture of the humerus bone. The learned counsel for the accused appellants contended that 5 foreign bodies which were recovered from the body of the deceased Raja Ram were called by this Court during the course of the argument for perusal and the jar contained six articles out of which there were 4 wad pieces and one was lead slug but in addition to it one article of plastic was more found in the jar. That does not bear any reference in any of the seizure memos or the report of the medical jurist PW/4 Dr.B.M.Sharma. In addition to it, learned counsel for the appellants, also contended that 4 wad pieces (D/1 to D/4) which were found in the jar and recovered from the body of the deceased Raja Ram were not sent to the Forensic Science Laboratory for detection of the blood, and the wad pieces which have been shown to be recovered from the body of deceased Raja Ram could not travel right from the nipple to the axillary line of the left chest and further may cause an entrance wound at the humerus bone by causing a fracture of the humerus bone. 19. Learned counsel for the accused appellants also contended that there were fractures of 2 to 6 ribs of the right side and 3 -5 ribs of the left side. Thus, the story of the prosecution that after passing through such a distance, creating some injuries these wad pieces remained without any blood stains, is not reliable and it is improbable that the wads may travel at such a distance in the human body. 20. The learned counsel for the accused appellants also contended that in cross examination PW/4 Dr.B.M.Sharma deposed that there were 5 metallic foreign bodies which were found in the body of the deceased which were sealed in jar marked as "A" whereas it contained only 4 wads, one lead slug and the 6th a plastic article. 21. Learned counsel for the accused appellants further contended that as per site memo prepared by the investigating officer, just after the incident, two empty cartridges were found at the spot, which were marked in Ex.P/4 as X-1 and X-2 and as per Ex.P/4 the distance between X & X-1 was 30 ft and X & X-2 was 188 ft. Thus, as per the prosecution story, the first gun shot took place at 30ft . distance of the dead body and second gun shot took place at 188 ft. distance of the dead body and it creates serious doubt about oral statement deposed by the eye witnesses. Mark 'X' was marked in Ex.P/4 as place where dead body was found. 22. distance of the dead body and second gun shot took place at 188 ft. distance of the dead body and it creates serious doubt about oral statement deposed by the eye witnesses. Mark 'X' was marked in Ex.P/4 as place where dead body was found. 22. Learned counsel for the accused appellants contended that it was a case of blind murder and the complainant party implicated both the accused appellants falsely and adduced the evidence of only interested witnesses, as PW/1 Murari Lal brother of deceased Raja Ram and another witness PW/2 Banwari Lal brother of deceased Raja Ram and no independent witness was examined by the investigating officer. 23. The learned Public Prosecutor, while defending the judgment of the learned trial court contended that the autopsy was conducted by a medical board consisting of three doctors and the statement of PW/4 Dr.B.M.Sharma cannot be thrown out simply on this basis. Further he argued that the statement of the eye witnesses should be relied on, even if it is not corroborated by the medical evidence. 24. We have perused the statement of PW/1 Murari Lal and PW/2 Banwari Lal, along with the statement of PW/4 Dr.B.M.Sharma and PW/3 Avtar Singh as referred by the learned counsel for the accused appellants and also considered the rival contentions advanced by the learned counsel for the parties. 25. PW/4 Dr.B.M.Sharma deposed in his statement that there was one entrance wound at 2'' above the right nipple and an exit wound in the mid axillary line of the left side of chest and again an entrance wound inside left arm which was 1'' below the axilla. This injury also caused the fracture of the humerus bone and he further deposed that 5 foreign bodies were recovered from the body of the deceased at the time of the autopsy and were sealed in a jar. Further he deposed in cross-examination that these foreign bodies were metallic in character, whereas on perusal by Court, there were 6 foreign bodies in the jar, out of which 4 were wads and 1 lead slub and one plastic article in the jar. Further, no blood stains were found on the wads. The wads were not sent to the Forensic Science Laboratory for detection of the blood stains. 26. Further, no blood stains were found on the wads. The wads were not sent to the Forensic Science Laboratory for detection of the blood stains. 26. As per Ex.P/4, site memo, the empty cartridges were lying about 150ft away from each other and as per the statement of PW/1 Murari Lal and PW/2 Banwari Lal the accused appellants fired gun shot at the same time and from the same distance. It creates serious doubt in the prosecution story. 27. The prosecution story further appears to be doubtful from this fact also that these 4 wads were found on the body of Raja Ram because these wads were either of the paper or other material and they were in tact without any damage and when the gun shot travel at such a distance, entering through the chest and exiting from the axillary region and further entering in the arm region, causing fracture of the humerus bone and these four wads remained in tact without any blood stains. 28. Thus all these facts as indicated above, creates serious doubt regarding the testimony of PW/1 Murari Lal and PW/2 Banwari Lal. Ex.P/1 also bears the name of one more eye witness Krishan Lal but this witness has not been examined by the prosecution for the reasons best known to it. 29. Thus, the consequence drawn by the learned trial court are based on material infirmities, contradictions and improbabilities and further the natural spot of the gun firing, is not established because of the distance shown in the site memo. Further , the blackening of the clothes where the gun shot hit raises doubts about the prosecution case. Because of the fact that the blackening of the article is possible if the gun shot is hit from a very close range whereas as per Ex.P/4, the gun shot was hit from a distance of at least 30 ft. The infirmities as pointed out by the learned counsel for the accused appellants, can be said to be infirmities in the investigation and for which it can be very well said that they creates serious doubt about the testimony of the eye witnesses, PW/1 Murari Lal and PW/2 Banwari Lal and there is no evidence so as to sustain the conviction based on their testimony, without any trustworthy medical corroboration. There is a positive evidence of existence of blackening of the corners of the hole of the shirt as well as the banyan worn by the deceased at the time of the incident. This suggests the fact that the shot was fired at a very close range. The evidence produced by the prosecution in the form of site inspection memo, Ex.P/4 ,and the statement of PW/1 Murari Lal and PW/2 Banwari Lal does not support firing at such a close range, that could result in the blackening of the borders of the hole of the shirt and the banyan, worn by the deceased at the time of the incident. No evidence in the form of the opinion of the ballistic expert, or medical expert, has been produced to establish that such blackening of the corners of the hole of the clothes worn by the deceased could reasonably exist if the type of gun allegedly used by the accused is used as disclosed by the prosecution. In the absence of such an evidence, the unexplained blackening found on the upper part of the clothes like shirt and banyan on the person of the deceased, leaves a big gap in the prosecution story. 30. In this particular case, the nature and position of the injuries on the body of the deceased are not consistent with the testimony of the eye witnesses having regard to the local site because the gun shot injury found on the body of the deceased, as deposed by PW/4 Dr.B.M.Sharma, were of such a nature that the gun shot entered at the chest level and exited through the axillary region of the chest and there is no evidence on record that the deceased sustained these injuries in a sitting posture as the direction of the injuries caused by the bullets was from the upper part to the lower part and the bullet injury was inter posteriorly . As per the post mortem report, the person who caused injuries to the deceased must be at a higher level than the deceased and this is wholly inconsistent with the testimony of the eye witnesses. Though the medical experts' opinion is not always final and binding but in the instant case, the post mortem report corroborates other circumstances, which creates doubt in the testimony of the eye witnesses. Though the medical experts' opinion is not always final and binding but in the instant case, the post mortem report corroborates other circumstances, which creates doubt in the testimony of the eye witnesses. The nature of the injuries referred in the post mortem report Ex.P/15, suggest that the occurrence did not take place in the manner suggested by the prosecution and it appears that the genesis of the fight has been suppressed from the court and it creates serious doubt regarding the trustworthiness of the eye witnesses also. 31. In view of the aforementioned discussions, the prosecution story does not inspire faith and it creates serious doubt regarding the way in which the incident has been deposed to have taken place and this is a fit case in which the benefit of doubt should be extended to the accused appellants. 32. Accordingly, both the accused appellants are acquitted by extending the benefit of doubt. The appeal is allowed as indicated above and the accused appellants are acquitted of the charges framed against them. The judgment of conviction and order of sentence passed by the learned Addl. District & Sessions Judge (Fast Track), Sriganganagar dated 14.01.2004 is set aside. The accused appellants Mahaveer Prasad s/o Manphol Ram and Manphol Ram s/o Sada Sukh, are in jail they may be released forthwith, if not required in any other case.Appeal allowed. *******