Dharnidhar Jha, J. 1. The present appeal was filed by three appellants, namely, Ravindra Singh, Bijendra Singh and Bisram Singh to challenge the judgement and order of conviction dated 19.10.1983 passed on them by the learned 6th Additional Sessions Judge, Shahjahanpur in Session Trial No. 183 of 1983 and the sentence passed upon each of them. However, appellant Ravindra Singh and Bijendra Singh died during the pendency of the present appeal and, accordingly, the appeal against them stood abated, as may appear from the order passed by this Court today, leaving the appeal only for and on behalf of appellant Bisram Singh as regards the substantive sentence of imprisonment passed against them. By the impugned judgement, the learned trial judge had held deceased appellant Ravindra Singh guilty of committing offence under Section 302 I.P.C. as also that under Section 324 /34 I.P.C. and had directed him to suffer rigorous imprisonment for life under Section 302 I.P.C. and to pay a fine of Rs.110/- only for committing the offence under Section 324 /34 I.P.C. The present appellant Bisram Singh and the deceased appellants Brijendra Singh and Ravindra Singh were held guilty only of committing offences under Section 324 and 324/34 I.P.C. respectively and each of them was directed to pay a fine of Rs. 1100/- only. In case of default, in paying up the fine imposed upon them, each of the appellants was directed to suffer simple imprisonment for six months. 2. The prosecution case was based on the F.I.R., Ex. Ka.-2, lodged by P.W.-1, Smt. Kamla Devi W/o deceased Collector Singh, in which she stated that she alongwith her husband had gone to Shahjahanpur alongwith their son Suresh ( P.W.-2) on 03.02.1983. They were also accompanied by Brijpal Singh who happened to be the brother of deceased Collector Singh. It was stated that after having purchased some articles in Shahjahanpur market, they were returning to their house and when they were at the Chak-Road at about 5.00 p.m., the three appellants emerged from the wheat-mustered filed of one Nanda Gareriya ( P.W.-4). The deceased was paddling a cycle, whereas P.W.-1 was on foot. It was further stated that Brijpal Singh and Suresh ( P.W.-2) son of Kamla Devi, the informant, and the deceased were together, they were moving on foot. The deceased was paddling a cycle, whereas P.W.-1 was on foot. It was further stated that Brijpal Singh and Suresh ( P.W.-2) son of Kamla Devi, the informant, and the deceased were together, they were moving on foot. The three appellants were armed with guns and as soon as they emerged from the said wheat-mustered field of Nanda Gareriya, they remonstrated the deceased by saying that he had been escaping till that date and they would not spare him. On account of the old enmity, the deceased appellant Ravindra Singh is stated to have fired a shot, which hit him in his chest. 3. It was stated that Brijpal Singh, the younger brother of the deceased, locked Bisram Singh in his arms and the informant snatched his gun but in the meantime the deceased appellant Brijpal Singh in order to killing the informant and Brijpal Singh ( not examined), the younger brother of the deceased, fired a shot which injured the left hand of P.W. -1. P.W.-1 and her son P.W. -2 shouted and in the meantime, the three appellants ran away with the gun towards village Sehra. 4. It was stated that after being hit by the shot fired by the appellant Ravindra Singh, the deceased in order to saving himself ran towards north and fell down on the ridge of a field at a distance of 100 yards from the scene of occurrence. He fell by his belly and breathed his last there. It was also stated that on account of the shouts, many of the persons of the village came there and the informant leaving the dead body there within the custody of those villagers came to the police station to lodge report, Ex. Ka.-2. 5. It appears that P.W.-7, S.I. Kali Shankar Tiwari, who was the station officer of P.S. Sehra Mau South, directed Sri Narayan Singh ( P.W-4) to draw up F.I.R. and himself took up the investigation. P.W.-7 stated that he recorded the statements of the informant Kamla Devi and also her son, Suresh ( P.W.-2) and others after taking over the investigation himself. He had recorded the statements of witnesses at the place of occurrence and also held inquest upon the dead body on 04.02.1983. The inquest report was market Ex. Ka. 6. P.W.-7 stated that he recorded the statements of the informant Kamla Devi and also her son, Suresh ( P.W.-2) and others after taking over the investigation himself. He had recorded the statements of witnesses at the place of occurrence and also held inquest upon the dead body on 04.02.1983. The inquest report was market Ex. Ka. 6. He thereafter prepared the relevant documents, like, the sketch of the dead body, the Chalan for sending the same to hospital, which has been marked as Ex. Kas. 7, 8 and 9, and forwarded the same through constable Virendra Pal Singh ( P.W.-6) to Dr. B. P. Sharma ( P.W.-3) for post mortem examination. 6. Kali Shankar Tiwari ( P.W.-7) also inspected the place of occurrence and prepared the site plan, Ex. Ka.-15. During the inspection of the place of occurrence, he recovered blood stained earth, a pair of shoes which were put on by the deceased and the two cycles which were found at the place of occurrence and were, allegedly, belonging to the deceased and his brother Brijpal Singh ( not examined) by preparing Exs. Ka. 10, 12 and 13. He searched the houses of the accused persons so as to affecting their arrest but did not find them as may appear from Ex. Ka. 14. 7. He also sent P.W.-1 for her medical examination after preparing the requisition which was addressed to Medical Officer Incharge, Sadar Hospital, Shahjahanpur, which has been marked Ex. Ka. 17. It appears from the evidence of Dr. B. P. Sarma ( P.W.-3) that on examination of P.W.-1, he found lacerated wounds of different sizes and shapes with margins very much irregular on upper 2/3 portions of left middle and ring fingers, on their front and back. In the opinion of P.W.-3, it was very difficult to differentiate between wounds of entry and exit. There was lacerated wound also in the centre and the nodal side of left index finger and bluish blisters on left small finger on its front as also on front of left ring finger. There was no blackening around the wounds and the wounds were measuring from 2c.m x 5 c.m. to 1 c.m. x 8 c.m. in different directions and it was bleeding on touch and, as such, X-ray was advised. There was no blackening around the wounds and the wounds were measuring from 2c.m x 5 c.m. to 1 c.m. x 8 c.m. in different directions and it was bleeding on touch and, as such, X-ray was advised. It may be noted that P.W. 4 had examined P.W.-1 on 04.02.1983 at 3.20 p.m. and considering the injuries had kept P.W. -1 under observation and had also advised for X-ray so as to giving his final opinion on bony injury. The injuries were one day old. The opinion of P.W.-4 was not definite as to whether it was caused by fire arm and, as such, in order to get his opinion confirmed he advised X-ray so as to gather the presence of any foreign body. 8. What I find from reading of the evidence of P.W.-1 is that he was giving an opinion in the Court during his examination that he had found some pillet found embedded in one of the injuries. But, on perusal of Ex. Ka. 17 there does not appear anything like that mentioned in it. However the Radiologist of the District Hospital Shahjahanpur, had found the fracture of proximal phalanx of left, middle and ring fingers and no callus was seen with multiple small pieces of radio-opaque shadows as may appear from Ex. Ka. 4 and paragraph 2 of P.W.-5 also. Thus it may appear that there was no finding of any pillet given by the Radiologist in his report. 9. P.W.-7, after finding the material sufficient, sent all the three appellants for trial and accordingly, that resulted into the impugned judgment. 10 The defence of the appellants was that the deceased was a veteran criminal and the lady informant was also accused in a few cases. The deceased and the informant might have ventured out to commit some offences and he was probably retaliated and killed by some other persons and during that course, P.W.-1 and the informant were also injured. 11. A total number of eight witnesses were examined out of whom P.W. -1, Smt. Kamla Devi and Suresh ( P.W.-2), her son were eye witnesses. Dr. B. P. Sharma, ( P.W. -3) had examined P.W. -1 for her injury on her hand and P.W.-5, Dr. P.S. Verma had given the radiological opinion after the injury of P.W. -1 had been X-rayed. Dr. B. P. Sharma, ( P.W. -3) had examined P.W. -1 for her injury on her hand and P.W.-5, Dr. P.S. Verma had given the radiological opinion after the injury of P.W. -1 had been X-rayed. P.W. -4, Narayan Singh was the head Moharrir of the police station and he had drawn up the statement in the form of the F.I.R., Ex. Ka. 2, and had also made the G. D. Entry Ex. Ka. 3. Besides, he had submitted the copies of the special report. As per his evidence, the F. I. R. was drawn up on 03.02.1983, but in his cross-examination, he had stated that no investigation was started and only a report of non-cognizable nature was registered by 5-00 p.m. on 04.02.1983 which appears from paragraph nos. 2 and 4. Constable Virendra Pal Singh ( P.W. 6 ) had taken the dead body to Dr. K. K. Srivastava ( P.W.-8) for post mortem examination. P.W. -7, I have just pointed out, had investigated the case. 12. The learned Trial Judge placed reliance upon the evidence of P.Ws. 1 and 2 and recorded the order of conviction against the appellants. 13. It was contended by the learned Amicu Curie that the evidence of P.W.-1 was not inspiring confidence and it was contradictory on most of the part with that of P.W. 2, her son. Submission also was that one of the most competent witnesses as per the F.I.R., Brijpal Singh, who happened also to be younger brother of the deceased and whose cycle was also recovered from the place of occurrence as may appear from Ex. Ka. 13, was not produced for evidence. As regards the claim of P.W.-1 that she and P.W. 2 were accompanying the deceased with Brijpal Singh, was not established on the very strength of the evidence of P.W. -1 and due to the non-examination of Brijpal Singh. It was next contended that the case was of one gun shot but Dr. K. K. Srivastava ( P.W. -8) found two gun shots on the dead body besides finding two other injuries in the forms of two abrasions which were caused by hard and blunt substance and the opinion of P.W. 8, thus, completely negatived the prosecution story. 14. Learned A.G.A. supported the judgement of conviction on reasons assigned there under. 15.It is true that P.W.-1 was bearing some injuries. 14. Learned A.G.A. supported the judgement of conviction on reasons assigned there under. 15.It is true that P.W.-1 was bearing some injuries. As per her evidence while Brijpal Singh had caught accused Bijinder Singh who had having a gun by locking his arms around him, the lady, informant, snatched the gun from him and during that course, deceased appellant Bijender Singh was said to have fired a shot which hit the lady informant, as per the F.I.R., in her left hand. I have extracted the evidence of P.Ws. 3 and 5, i.e., Dr. B. P. Sharma and Dr. P. S. Verma and I have clearly stated that no pillet was found by both of them, though P.W.-3 stated in his evidence that he had found a pellet embedded in one of the wounds. This is completely contradictory to the document prepared by him which was marked Ex. Ka.-1. Thus, in his own opinion, which was expressed both in Ex. Ka.-1 and during his evidence in Court, it was quite indefinite that the lady could have been injured in her left hand by fire arms. This is one aspect where the claim of the lady that she was injured in the same incident so as to competing as an eye witness pales into doubt. 16. In addition to the above, what I further find is that the lady stated in her very evidence in Court in paragraph 6 that she was not aware as to whether there was any market in Sehramau which was the nearest place on account of being the place where the police station was also situated and which was within the District of Shahjahanpur. She stated that prior to that particular day, i.e., 03.02.1983, she had not gone into any market place for purchasing any articles as she was a Pardanashin lady. If this was so that she had not ventured out of her house for going to a market place for purchasing anything, then there was no special reason shown to exist on that particular day by P.W.-1 as to why she should go to purchase anything in Shahjahanpur Market. The lady was aged about 32 years and she was the mother of P.W.-2, who was aged about 13 years. The lady was aged about 32 years and she was the mother of P.W.-2, who was aged about 13 years. The above statements and circumstances make it utterly unacceptable to me that the lady would be accompanying his husband and son to go to the market place for purchasing anything. Even accepting for the sake of argument that she had gone out with her husband for marketing purposes, it was necessary for the prosecution to produce the receipts of articles purchased by the lady and her husband as she stated that they had purchased some clothes, blouse pieces and petticoat for the lady and two pieces of cloths for making pants of the deceased and pieces of cloths for making a pant and a Bhushirt for P.W.-2, were purchased. She also stated that she could not say as to what was the money spent on the purchased articles ( paragraph 6 of P.W.-1). P.W.-1 had stated that the clothes which were purchased for P.Ws. 1 and 2, were carried by her Devar, i.e., Brijpal whereas the clothes which were purchased for making pants for the deceased were handed over to the tailor. Curiously enough, the cycles of the deceased and his younger brother Brijpal were recovered from the site of occurrence as per evidence of P.W.-7, the investigating officer of the case, and he further claimed to have prepared the relevant documents, the seizure memo Ex. Ka. 13. P.W.-7 had stated that only a Jhola of Jute was found in one of the cycles said to belong to Brijpal and one piece of cauliflower was found kept inside that Jhola. If the clothes, purchased by the deceased and P.W.-1 had really been carried by Brijpal then the same could have been found either in the Jhola or tagged to the Cycle by some other means. These are some of the reasons on account of which in spite of P.W.-1 being injured, I have serious doubt about her presence at the place of occurrence and I further doubt the story propounded by her that she had accompanied her deceased husband to Shajahanpur for making any purchase, specially, when the younger brother of the deceased, Brijpal, was not appearing in Court to support P.W.1 and her story of going to Shahjahanpur for the purpose as stated by her and also that he had accompanied the deceased and P.Ws. 1 & 2. 17. 1 & 2. 17. So far as the evidence of P.W. -2, her son is concerned, it had come in his own evidence,that he was produced by her parents before the learned Public Prosecutor and he was questioned by him in their presence at his residence, which is available from the copy of the deposition sheet of P. W. 2, which appears at page 32 of the paper book. It is true that P.W.-2 had stated that he was not tutored by the public prosecutor, but he had admitted in the last paragraph of his deposition that he was questioned by him on the occurrence. P.W.-2 was aged about 13 years on the date he was deposing in court, i.e., on 10.08.1983 which was after about six months of the occurrence and as such he could be aged about 12 and half years on the date of occurrence, i.e., on 03.02.1983. It is not that a child witness could not be a competent witness, but the evidence of such a witness has always to be considered with caution as there might be a chance of such a witness being tutored. This is the reason that courts have always approached the evidence of such a witness only when there is some corroboration to his evidence and when the witness had been found competent enough to make statement. The very fact that his parents were accompanying him and were taking him to the public prosecutor who was putting questions to him, may lead to an inference that there might be some chance of P.W.-2 being tutored. Not only that, P.Ws. 1 and 2 both stated to the learned trial Judge that they were accompanying the deceased up to Shahjahanpur and were coming back to their house with Brijpal Singh. I have already reiterated that Brij Pal Singh hid not come to support any part of the story or claim of P.Ws. 1 and 2 and as regards the evidence of P.W.-2 he appears not supporting his mother on some points. His mother had stated in paragraph 6 at page 21 of the paper book that she and the three others including the deceased had eaten something together after the purchases were over. 1 and 2 and as regards the evidence of P.W.-2 he appears not supporting his mother on some points. His mother had stated in paragraph 6 at page 21 of the paper book that she and the three others including the deceased had eaten something together after the purchases were over. But, when it came to P.W.-2, the Court was putting a question itself to him as may appear from page 31 of the paper book, as to whether his father had eaten something or not. He stated that he did not know as to whether his father had eaten anything, and he was categorically answering to the question to the defence counsel that he, his uncle and his mother had not eaten anything. Before that answer, he had also stated that they had not taken anything in Kheruganj. This may not be a big issue, but when it comes to relying upon a witness, then simple, smaller things may also assume significance. Moreover the faculty of the witness does not appear quite developed. He was not knowing counting, but he was telling the Court that the occurrence had taken place some six months back and, as such, he was confronted as to how he could count the period of six months to which he replied that he could not say. It further indicted that he might have been tutored. Moreover, some of the statements, he had made in court appears not made by him like the manner in which his mother was hit by the shot fired by appellant Bijender Singh. As per the evidence of P.W.-1, she was hit by the shot when she was catching hold of the muzzle and butt-part of the gun, as may appear from the evidence of P.W.-1 at page 22 of the paper book, but P.W.-2 stated that while his mother was standing away from appellant Bisram Singh who was at a distance of about 6 feet from her and when she had opened and extended her arms, that she had been hit by the shot. P.W.-2 was stating, as did P.W.-1, that only two shots were fired, one by deceased appellant Ravindra Singh and other by the appellant Bijendra Singh on the informant. However, on consideration of the evidence of Dr. P.W.-2 was stating, as did P.W.-1, that only two shots were fired, one by deceased appellant Ravindra Singh and other by the appellant Bijendra Singh on the informant. However, on consideration of the evidence of Dr. K.K. Srivastava ( P.W.-8), it distinctly appears that there were two gun shot injuries which were found on the dead body of the deceased and each of them were bearing tattooing around the wound of entry. The presence of tattooing around the wound of entry indicated that both the shots were fired from very close range. P.W.-1 had stated that the guns which were in the hands of the accused persons were not regular guns; in fact she had stated that the accused persons were not having licensed guns rather they had Tamanchas, i.e., country-made guns. It is too well known to be pointed out that country-made guns could cause tattooing around wounds when they were fired from very-very close range. I have already pointed out that as per prosecution evidence, only one shot was fired by deceased appellant Revindra Singh which hit the deceased in his chest. P.W.-8 very clearly stated, when he was cross-examined, that each of the two shots were independent and there was no case in his opinion of fragmentation or breaking up of the projectile. Not only that, P.W.-8 had found two abrasions also, which were caused in his opinion by hard and blunt substance. There was no further story of any assault being wielded upon the deceased by any of the deceased by any hard and blunt weapon. Thus, what appears from the evidence of P.W. -8 is that, it was completely in contradiction of the manner of assault or occurrence as narrated by P.Ws. 1 & 2 and I have all the reasons to note that if a witness was telling story which was completely in contrast to the medical opinion, then in that case, the witness may not be accepted as an eye witness to the occurrence. 18. P.W.-1 had admitted that her husband was accused in many cases and she had also been booked in a few. The defence had produced Ex. Kha.-1, which was the charge sheet submitted in Session Trial No. 311 of 1981 under Section 395, 397 and 412 I.P.C. corresponding to Miula police station Case No. 75 dated 08.06.1978 in which P.W. -1 and the deceased were both accused. The defence had produced Ex. Kha.-1, which was the charge sheet submitted in Session Trial No. 311 of 1981 under Section 395, 397 and 412 I.P.C. corresponding to Miula police station Case No. 75 dated 08.06.1978 in which P.W. -1 and the deceased were both accused. Not only that, the evidence of P.W.-4 Moharrir ( Narayan Singh) indicates that Register no. 8, which was in respect of history-sheeters, was produced in Court by the witnesses. As per the entries in that register which was deposed to by P.W. -4, the deceased was accused in 10 cases some of which were under Sections 25AA Arms Act, 394, 395, 396 and 397 I.P.C. One was under Section 399/402 I.P.C. in which he had been sentenced to rigorous imprisonment for four years which appears from page 39 of the paper book. It is true that the accused persons were also enimically disposed towards the deceased and it is also true that the informant was stating in Court, in her evidence that she suspected accused Ravindra Singh and others as persons who were instrumental either in getting the deceased implicated or arrested. Not only that, she also held the above appellant Ravindra Singh responsible for her own arrest. 19. After having gone through the evidence of witnesses, what I could visualise, was that in fact the deceased and the informant could have been injured in any other manner by some persons who could not be identified and whose identity could also not been ascertained. It was the reason that for most of the day, i.e.,on 04.02.1983, there was no F.I.R. registered for investigating the case as appears from the evidence of P.W.-4, Moharrir of the police station. Not only that P.W.-1 was also shying away from getting her injuries examined by a Doctor as appears from the evidence of P.Ws. 2 and 4 in examination-in-chief and further that there was no entry in the general diary after 04.02.1983 as to when the special report was transmitted to the Magistrate. Probably, the appellants were implicated on suspicion and the police were also acting to cover up their own inability in not tracing out the track of the crime by finding the real culprits. The deceased might have been targeted by many persons or might have met with his fate while committing an offence,and the lady, out of serious suspicion, was implicating the appellant 20. The deceased might have been targeted by many persons or might have met with his fate while committing an offence,and the lady, out of serious suspicion, was implicating the appellant 20. In the result, I find that the judgment of conviction was at all not sustainable on facts as the prosecution story was wrapped in mystery and as such the accused persons deserved to be acquitted and, accordingly, I allow the appeal by acquitting the appellant Bisram Singh of the charge of which he was convicted. He is on bail. He shall stand discharged from the liability of his bond and in case he had deposited the fine, the same shall be reimbursed to him.