JUDGMENT 1. - The present Criminal Appeal has been filed under Section 374 of the Criminal Procedure Code against the Judgment and Order dated 19/20.4.1989 passed by Additional Sessions Judge, Chittorgarh in Sessions Case No. 39/1989 convicting and sentencing the appellant for the offence under Section 308 Indian Penal Code to undergo 2 years R.l. and a fine of Rs. 50/-, in default of payment of fine to further undergo 4 months' R.l. 2. The F.I.R. was lodged by injured Vijay Singh himself on 28.5.1984 alleging that he along with Kanhaiyalal, Lalchand, Murlidhar and Ramswaroop were going on a tractor carrying stones. When they reached Bakshpura, Pratap Singh passed by. Pratap Singh stopped them and directed Kalyan Singh to bring the gun. Kalyan Singh brought the gun and pointed it towards Vijay Singh. Meanshile, Kanhaiyalal got down from the tractor and caught hold of the gun while, Vijay Singh ray away from the spot. When Vijay Singh reached a distance of 50 feet, Kalyan Singh fired at him. As a result, Vijay Singh received two pellet injuries on the right arm. Thereafter, petitioner took hold of a lathi and followed Vijay Singh. The motive alleged is old enmity. The police registered an F.I.R. under Sections 341, 307 read with Section 34 Indian Penal Code against the appellant and Pratap Singh. Pratap Singh was acquitted vide Judgment and Order dated 18.6.1988. No appeal has been filed by the State, whereas, the appellant is convicted vide Judgment and Order dated 19/20.4.1989, which is impugned herein by the appellant. The Additional Sessions Judge while convicting the appellant, sentenced for an offence under Section 308 of Indian Penal Code The Court found that no offence under Section 307 of the Indian Penal Code was made out, as it could not be said that there was any intention to kill. 3. Learned Counsel for the appellant while praying for acquittal of the appellant has invited the attention of the Court to the evidence led by the prosecution including the F.S.L. report with respect to the gun recovered from the appellant as also the injury report. Upon medical examination of the injured Vijay Singh, two wounds were found on the right elbow. Both the said wounds are simple in nature. It was found that there was blackening around on the wounds. Upon medical examination of the injured Vijay Singh, two wounds were found on the right elbow. Both the said wounds are simple in nature. It was found that there was blackening around on the wounds. Admittedly, as per the prosecution, the said wound was on account of the firing by the gun from a distance of 50 feet i.e. the distance between the injured and the gun was 50 feet at the time of firing. If that is so, there could not have been any blackening. Thus, there is discrepancy in the medical and ocular evidence. 4. Secondly, as per the F.S.L. report (Ex. P-14), the trigger of the gun was defective and that it was not possible to fire the same under normal condition. It could be fired only by using improvised method. The said result of the examination is read as under:- "(1) Due to defective mechanism of the trigger of submitted SBML gun (W-l), it was not possible to fire the same under normal condition. However, the gun in question would be fired by using the improvised method. (2) The examination of the barrel residue indicates the submitted SBML gun (W-l) had been fired some time before, it was received in the laboratory." 5. The prosecution has nowhere explained as to which other improvised method was used to fire the gun at the time of incident. 6. Moreover, as per the prosecution itself, the gun at the time of recovery was loaded. The same was sent for F.S.L. after emptying the same by firing the shots. In case, the gun was loaded at the time of recovery, it only suggests that it as not used as alleged in the said incident. In any case, it does give rise to suspicion and doubt as to whether the said incident occurred the way as has been presented by the complainant and the prosecution. 7. Also the other witnesses cited by the complainant and the prosecution i.e. IV-8 Murlidhar, PW-7 Ramswaroop and PW-5 Kanhaiyalal have not supported the prosecution story. 8. Thus, there is positive contradiction in the testimony of sole injured witness. The same is not corroborated either by medical evidence or by the her witnesses who have not supported the prosecution story. 9. In view of the above, the present Criminal Appeal is allowed. 8. Thus, there is positive contradiction in the testimony of sole injured witness. The same is not corroborated either by medical evidence or by the her witnesses who have not supported the prosecution story. 9. In view of the above, the present Criminal Appeal is allowed. The judgment and Order 19/20.4.1989 passed by the Additional Sessions Judge, chittorgarh in Sessions Case No. 39/1989 is set aside. The appellant is, accordingly, acquitted of the said charges.Appeal Allowed. *******