JUDGMENT : Per S.K. Sharma, J. – Appellants Bimlesh Singh and Bhagwan Singh have assailed the judgment of conviction and order of sentence dated 30th November, 1989 passed by the learned 6th Additional Sessions Judge, Rohtas at Sasaram in connection with Sessions Trial No.171 of 1986, holding both the appellants guilty under Section 302/34 of the IPC and Section 27 of the Arms Act and each of them were sentenced to undergo R.I. for life for offence under Section 302/34 of the IPC and three years for the offence under Section 27 of the Arms Act. The sentences were ordered to run concurrently, Besides the appellants one Ram Narayan Singh was also inflicted similar conviction and sentence but he had died and the appeal against him had abated after receipt of the report from the S.P. Rohtas about the death of Ram Narayan Singh. 2. The occurrence is of the morning of 13.7.1985. On that date at 6.30 a.m., Keshaw Singh was preparing himself for day’s work. In the process, he was brushing his mouth at that very time the informant’s villagers Ram Narayan Singh (now dead) accompanying Bhagwan Singh and Bimlesh Singh went upon the roof of Bhagwan Singh. Since the three accused went upon the roof then Ram Narayan Singh instigated other two accused namely the appellants to shoot at on his standing enemy. Firing was resorted to upon Keshw Singh which caused injury upon his person and as a result thereof he fell down. The informant and the persons sitting there namely his brother Ram Sewak Singh PW 1, Ram Bidya Singh PW 3 and Hars Narayan Singh and Harshdeo Singh PW 2. The informant and others dragged Keshaw Singh towards Eastern side. The informant noticed firearm injury upon the stomach, left side and on the leg beneath knee and Keshaw Singh was carried on a cot by Ram Bidya Singh PW 3, Ram Sewak Singh PW 1 and others. At that very time three culprits got assistance of his gang men who fired to scares the informant and others. The informant changed the way and crossed the boundary of the village and was taken to one Dr. Tiwari (not examined), who injected pain killer. Keshaw Singh was carried upon the jeep to Sasaram hospital but he was pronounced dead. The old enmity was the motive behind the occurrence. The fardbeyan (Ext. The informant changed the way and crossed the boundary of the village and was taken to one Dr. Tiwari (not examined), who injected pain killer. Keshaw Singh was carried upon the jeep to Sasaram hospital but he was pronounced dead. The old enmity was the motive behind the occurrence. The fardbeyan (Ext. 5) was given at Sasaram hospital which was recorded by S.I. Chandra Shekhar Singh PW 7 at 9:30 a.m. on 13.7.1985. Formal FIR (Ext. 7) of Sasaram Muffasil P.S. Case No. 283 of 1985 under Section 302/34 of the IPC was registered and it was sent to the Court where it was received on 14.7.1985. The inquest report of the dead body (Ext. 8) was prepared. Post-mortem was conducted and the post-mortem report (Ext. 3) was prepared by PW 6 Dr. Devendra Nath Sinha. The place of occurrence was investigated. The statements of the witnesses were recorded and some seizures were made but there is no proof that it was sent to anybody rather the evidence is that the copy of seizure list was not transmitted to Chief Judicial Magistrate. The case was found to be true by the police official and so the charge-sheet was submitted. Cognizance was taken and the case being triable by the Court of Sessions was committed where charge under Section 302/34 of the IPC and Section 27 of the arms Act was explained to the three accused persons who pleaded their innocence and preferred to face the trial and the trial accordingly ensued. 3. The defence of the accused persons was bitterness from before and it was also contended that none of the witnesses have seen the occurrence and after killing of Keshaw Singh an imaginary story was made and the accused persons were planted in 4. Before the trial Court the prosecution has examined PW 1 Ram Sewak Singh. PW 2 Harsh Narayan Singh @ Harsh Dev Singh, PW 3 Ram Bidya Singh, PW 4 Kailash Singh as material and eye-witnesses of the occurrence. All these four persons are named as witness in the fardbeyan itself. PW 5 is a formal witness and is not aware with the case but he has brought some papers (marked X and XII for identification). PW 6 has held the post-mortem upon the dead body of Keshaw Singh and PW 7 Chandra Shekhar Singh has investigated into the case. PW 5 is a formal witness and is not aware with the case but he has brought some papers (marked X and XII for identification). PW 6 has held the post-mortem upon the dead body of Keshaw Singh and PW 7 Chandra Shekhar Singh has investigated into the case. No defence witness has come to depose. 5. The learned trial Court heard the submissions, perused the papers, analyzed the evidence and became specific that the prosecution has succeeded in proving the charges against the accused persons beyond shadow of all reasonable doubts. 6. The prosecution has examined four witnesses as eye-witnesses and the informant has been examined as PW 4. Before taking up the deposition of other witness, his deposition is being analyzed firstly. PW 4 has described the occurrence which has taken place at 6:30 a.m. on 13.7.1985, at that time he came upon darwaja of PW 2 Harsh Narayan Singh @ Harsh Dev Singh and sat upon a cot kept there and started brushing. Ram Bidya Singh PW 3 and Ram Sewak Singh PW 1 were also brushing while sitting upon the cot along with PW 4. Keshaw Singh (the deceased) has brushed upon the tube well. While he was cleaning then the informant heard sound of Ram Narayan Singh (since dead) that the enemy should be finished. The informant danced in the direction from where the sound came and noticed that Ram Narayan Singh, Bimlesh Singh and Bhagwan Singh were on the roof of Jagdeep Singh. Bhagwan Singh and Bimlesh Singh were having double barrel gun. Bhagwan Singh fired which caused injury upon the stomach of Keshaw Singh upon the left side of the stomach. Second firing by Bimlesh Singh caused injury to the left leg of Keshaw Singh. Keshaw Singh fell down. The informant and Ram Bilash Singh dragged Keshaw Singh in a side but Keshaw Singh lost his consciousness and plenty of blood was oozing out. The injured was taken to Sasaram hospital through Akorhi Gala. When the informant proceeded some steps ahead of the house of Ram Narayan Singh then he noticed some firing. Besides the three named accused the firing was being resorted to by Babban Singh and Ram Dev Singh. The informant changed his way and proceeded in another way and pain killer was injected to the deceased by Dr. Tiwari. When the informant proceeded some steps ahead of the house of Ram Narayan Singh then he noticed some firing. Besides the three named accused the firing was being resorted to by Babban Singh and Ram Dev Singh. The informant changed his way and proceeded in another way and pain killer was injected to the deceased by Dr. Tiwari. Again Keshaw Singh was taken to Sasaram hospital but he was pronounced dead. Keshaw Singh was caretaker of the house. Certain litigations were going on between the accused and the informant and it was taken care by Keshaw Singh. The inquest report was prepared in presence of the informant and another. Statement was recorded and the case was proceeded. The informant has described the family wherein he has stated that he was five brothers. Ram Sewak Singh PW 1, Keshaw Singh (the deceased), Ram Swarath Singh (not examined) and Kameshwar Singh (not examined) were other brothers. One year prior to the occurrence also the accused persons had resorted firing upon the informant. The litigation was going on in consolidation Court since long and the accused persons have distributed the cheques during consolidation proceedings. The informant himself was a well armed person he was having a licensed double barrel gun. His son Rameshwar Singh was also having a licensed double barrel gun. 7. The evidence of PW 4 described the manner of occurrence wherein Keshaw Singh fired upon by the accused while they were upon the roof. Whose height has been described to be of more than 11 feet. by the witnesses. PWs 1, 2 and 3 were other witnesses who were present, when the firing was resorted to which killed Keshaw Singh. They have supported whole version as described by the informant in his evidence. These witnesses have been thoroughly cross-examined but remained consistent that at 6:30 a.m. on 13.7.1985, firing resorted to by Bhagwan Singh and Bimlesh Singh from the roof which caused death of Keshaw Singh. The minor contradictions and lapses are there. It has come that the injured initially was taken to Dr. Tiwari, where some medications were effected to but that Dr. Tiwari was not examined and no explanation has come as to why Dr. Tiwari was not examined. However, the eyewitnesses' account are intact so far as it relates to the charge that firing of these two have proved fatal. 8. Tiwari, where some medications were effected to but that Dr. Tiwari was not examined and no explanation has come as to why Dr. Tiwari was not examined. However, the eyewitnesses' account are intact so far as it relates to the charge that firing of these two have proved fatal. 8. In this background the doctor's evidence is required to be considered. The post-mortem of Keshaw Singh was performed at noon on 13.7.1985 and the dead body was identified by the constable, informant and PW 1. Rigor mortis was present and the doctor had found the following ante-mortem injuries : i. One wound of entry 3 inches away towards left of umbilicus with inverted margins. There was charring around the wound. The size of the wound was 1/4" inch in diameter and its depth went inside abdominal cavity. ii. One wound of entry in front of left thigh in the middle with inverted margin and charring around the wound. The wound was 1/4" in diameter and went deep into muscles. iii. One wound of exit on the back of left thigh parallel to injury No. (ii) stated above with inverted margins 1/2" in diameter communicating to injury No. (ii). iv. One wound of entry with inverted margins in front of leg just below joint with charring around the wound. The wound was 1/4" in diameter x bone deep. v. One wound of exit with inverted margin on the back of left leg 1/2" in diameter. 9. The death was within 24 hours of examination. The injuries were sufficient to cause death. The doctor has explained the injury in his cross-examination and has stated that the charring around the wound to entry suggests that the firing was upon from the close range. He has further clarified his post-mortem examination report when he has stated that injury Nos.2 and 3 were quite parallel and the trachea was quite straight. The doctor has further stated that the victim could have been fired from a height of 10’ to 11’ to track of injury wound have been from the above and downward and not as he has found in the present post-mortem examination report. 10. The doctor has further stated that the victim could have been fired from a height of 10’ to 11’ to track of injury wound have been from the above and downward and not as he has found in the present post-mortem examination report. 10. The consistent case of the witnesses is that firing was resorted to from the roof, the details of which has been given by the witnesses as well as the I.O. PW 3 in para-10 has stated that the roof of Jagjit Singh was at the height of 9’ to 10’ and there was railing of 2’ to 2-1/2 feet. The Investigating Officer has also inspected the place of occurrence and has made a detailed sketch map (Ext. 10) which has been noted in para-13 of the case diary. He has described the place from where the firing was made. In para-6 of his deposition wherein he has stated that the roof was at the height of 11 x ¼” and from that place firing was resorted to. This is the evidence of other witnesses also who have deposed on behalf of the witnesses of the prosecution. The only version came that it was from the height of more than 11 feet. This evidence has come in the examination-in-chief as well as in the cross-examination. The sketch map also shows that firing was made that Keshaw Singh was upon the ground and the corridors were upon the roof at a height of more than 11 feet. Now, if this version is accepted to be true then the prosecution case becomes doubtful in view of the categorical denial of the doctor. No doubt, the doctor’s evidence is only an opinion and it could be ignored if the eye-witnesses are consistent but if the doctor’s evidence gives together new versions of the occurrence then in view of the admitted hostility between the parties then the whole evidence could be analyzed. The eye-witnesses are no doubt are definitely hostile towards the accused. This has come in evidence of almost all the eye-witnesses. The death of Keshaw Singh was on account of firearm has also been established beyond shadow of reasonable doubts. But if eye-witnesses account is believed then medical evidence has to be described and it would be vice-versa. The eye-witnesses are no doubt are definitely hostile towards the accused. This has come in evidence of almost all the eye-witnesses. The death of Keshaw Singh was on account of firearm has also been established beyond shadow of reasonable doubts. But if eye-witnesses account is believed then medical evidence has to be described and it would be vice-versa. If medical evidence is taken into account then it is apparent that the firing was made from close range and the charring wound that the firing is made from close proximity. This insistence of the doctor relates the prosecution witnesses version that the firing was not from the close range and that it was a distance from the distance of 11-1/2 feet. Another contradiction between the eye-witnesses’ version and the doctor’s evidence is also apparent and it cannot be ignored. All the four eye-witnesses’ have stated that firing was made when the culprits were upon the roof and in that position the firing was made. The outcome of the injury in that circumstance would have been that the injury would have been caused from above and the bullet/pellet would have travelled towards downwards. But about injury No. ii and iii, doctor is giving another version of the occurrence and the doctor has found and stated that injury No. ii and iii were quite parallel and the trachea was quite straight. Not only that he has specifically asserted that if a person is fired from the height of 10/11 feet. Then the injury would have been above and in the downwards. PW 5 and PW 6 in para-6 were also corroborated the doctor’s evidence and gives another version of the occurrence. According to which the victim was fired upon from the height at which he was standing and not from the top. 11. Learned counsel for the appellant has submitted that the trial Court has ignored the specific evidence of the doctor and has unnecessarily and wrongly applied the eye-witnesses’ account only when it was confirmed by the doctor’s evidence. 12. On the other hand learned A.P.P. supported the judgment and also has supported the medical evidence. 13. The doctor is an expert. He is a neutral person and he supported and given the actual fact which he has found. He has described the manner of occurrence wherein firing which led to death was made. 12. On the other hand learned A.P.P. supported the judgment and also has supported the medical evidence. 13. The doctor is an expert. He is a neutral person and he supported and given the actual fact which he has found. He has described the manner of occurrence wherein firing which led to death was made. His version is that the firing was from close range which has caused charring and firing was made from the distance upon which he was standing. This has been noted by the doctor in his post-mortem report as well as in his evidence. Either the eye-witnesses are consistent that firing was from the top namely from more than 11 feet, and not from the same height upon which the victim was standing. The eye-witnesses’ account is not that the firing was made from close proximity rather it was a distance from more than 11 feet. Therefore between both count i.e. (1). One firing from close range or (2). The firing was made from the height have gross contradictions. The contradictions are such which cannot be reconciled. The doctor’s evidence has created doubt with regard to narration made by the witnesses in their evidence. The two types of evidences are quite contradictory and conflicting. Both cannot be reconciled together If such glaring inconsistent and contradictions found between eye-witnesses account and the medical evidence then it can be said that the prosecution has no complain with the correct version. In view of the matter it can be said that the prosecution has not explained the lacuna regarding manner of occurrence. 14. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are already on bail hence they are acquitted of the charges and discharged from the liabilities of their respective bail bonds. Appeal allowed.