JUDGMENT S.NAGAMUTHU, J. The appellants are the accused 1 to 3 in S.C.No. 59 of 2011 on the file of the learned Additional District Sessions Judge, Fast Track Court No.2, Salem. The first accused stood charged for offences under Sections 302 IPC and 25(1B)(a) of the Indian Arms Act and the accused 2 and 3 stood charged for offences under Sections 302 r/w 34 IPC and 25(1B)(a) of the Indian Arms Act r/w 34 IPC. By judgment dated 30.11.2011, the trial Court convicted A1 under Section 302 IPC and Section 25(1B) (a) of the Indian Arms Act; A2 and A3 under Sections 302 r/w 34 IPC. The trial Court sentenced the first appellant to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default to undergo six months simple imprisonment for offence under Section 302 IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/-, in default six months simple imprisonment for offence under Section 25(1B)(a) of the Indian Arms Act. The trial Court sentenced accused 2 and 3 to undergo imprisonment for life and pay a fine of Rs.10,000/-each, in default to undergo simple imprisonment for six months for the offence under Section 302 r/w 34 IPC. The trial Court acquitted the appellants 2 and 3 from the charge under Section 25(1B)(a) r/w 34 IPC. Challenging the said conviction and sentence, the accused/appellants are before this Court with this appeal. 2. The case of the prosecution, in brief, is as follows: The deceased in this case was one Dhasarathan. P.W.1 is the father of the deceased. All the three accused also belong to the same village. For quite some time, there was a dispute between the two families in respect of irrigation right. Three years prior to the occurrence in the instant case, when the deceased was standing in the bus stop, one Andi, Manivel, Madhu and Ramasamy had attacked him. In this regard, a complaint was made to the Police Station and a case was registered. The said case was under trial before the Court. Thereafter, there was a compromise reached between the two parties and therefore, the case ended in acquittal. However, the family of the accused developed grudge against the family of the deceased. This is stated to be the motive for the accused to commit murder of the deceased. 3. The said case was under trial before the Court. Thereafter, there was a compromise reached between the two parties and therefore, the case ended in acquittal. However, the family of the accused developed grudge against the family of the deceased. This is stated to be the motive for the accused to commit murder of the deceased. 3. On 11.02.2010, the deceased was in his house. P.Ws.1 to 3 were with him. They were inside the house watching television. By about 9.00 p.m., the deceased went to bathroom. The bathroom is on the western side of the house. Immediately, thereafter, P.Ws.1 to 4 heard a bang indicating a blast. P.W.1 rushed out of the house. P.Ws.2 to 4 also rushed out. At that time, all the four found the deceased sitting just at the entrance of the house. There were injuries on the front side as well as back side of the body of the deceased. He was profusely bleeding. At that time, P.W.1 noticed these three accused running away from the place of occurrence. P.W.1 also noticed the first accused having a gun in his hand. The deceased died within a few minutes. Thereafter, P.W.1 went to the Police Station and made a complaint in respect of the same. P.W.19, the then Sub Inspector of Police at Thammampatti Police Station received a complaint under Ex.P1 at 1.00 a.m. on 12.02.2010 and registered a case in Cr.No.12 of 2010 under Section 302 IPC and Section 25(1B)(a) of the Indian Arms Act. Ex.P13 is the FIR. He forwarded both the documents to the Court and handed over the case diary to P.W.21 for investigation. 4. Taking up the case for investigation, P.W.21, the then Inspector of Police proceeded to the place of occurrence and prepared an Observation Mahazar and a Rough Sketch showing the presence of P.W.5 and another witness. Then, he conducted inquest on the body of the deceased. Thereafter, he examined P.Ws.1 to 4 and recorded their statements. Ex.P18 is the Inquest Report. Then, he recovered a blood stained earth and other material objects from the place of occurrence. He then forwarded the body for post-mortem. P.W.15-Dr.Panneer Selvam, conducted autopsy over the body of the deceased on 12.02.2010 at 4.55 p.m. He found the following injuries: "INJURIES: 1. Thereafter, he examined P.Ws.1 to 4 and recorded their statements. Ex.P18 is the Inquest Report. Then, he recovered a blood stained earth and other material objects from the place of occurrence. He then forwarded the body for post-mortem. P.W.15-Dr.Panneer Selvam, conducted autopsy over the body of the deceased on 12.02.2010 at 4.55 p.m. He found the following injuries: "INJURIES: 1. An oval shaped punctured wound (entry wound) measuring 1.5 x 1.25 cms x cavity deep was seen over back of left chest 1 cm below and medial to inferior angle of left scapula and 38 cms below left scapular acromian process and enters into left pleural cavity. O/D the tract runs obliquely downwards and medially piercing the left 8th intercostal muscle, nerve and blood vessel and diaphragm, left lung base measuring 1.5 cm diameter and thro and thro. Left thoracic cavity contained 500 ml of fluid blood and clots and on further dissection an exit wound measuring 1.75 x 1.5 cm seen as punctured wound over right side of epigastric region -25 cm below the level of clavicle bone. 2. An oval punctured wound of 1.5 x 1.25 cm x cavity deep (entry wound) seen over left lumbar region at L1 vertebral level. O/D the wound pierces the underlying muscles, vessels and nerves and exits through right side of epigastric region -29 cms below the level of clavicle bone -4 cms below the previous exit wound and measures 1.75 x 1.5 cms. 3. An oval punctured entry wound over the upper part of the mid left gluteal region measuring 1.5 x 1.25 cm x cavity deep and it is situated 4.5 cms below the previous injury. The wound pierces the underlying muscles, vessels and nerves and the iron ball rests in the L5 lumbar vertebra ..(not recovered) 4. An oval punctured entry would over back of lower 3rd of left forearm measuring 1.5 x 1.25 cms x bone deep and it is situated 4 cms above left wrist, the iron ball runs upward and medially and rests in the deep fascial place ..(recovered) All the above entry would have inverted lacerated margins and exit wounds have everted margins. No tatooing seen over entry wounds. All the above injuries are antemortem in nature." Ex.P10 is the post-mortem certificate. He found two pellets in the body of the deceased. He removed the same [vide M.O.10]. No tatooing seen over entry wounds. All the above injuries are antemortem in nature." Ex.P10 is the post-mortem certificate. He found two pellets in the body of the deceased. He removed the same [vide M.O.10]. He gave opinion that the injuries would have been caused by shooting and he died of the same. Continuing the investigation, P.W.21 examined a few more witnesses and recorded their statements. On 18.02.2010, at 6.00 a.m. at Sembarakkai village, P.W.21 arrested all the three accused in the presence of P.W.16 and another witness. On such arrest, they gave voluntary confessions one after the other. P.W.21 recorded the same. In the said confession, the first accused had disclosed the place where he had hidden the gun and the ammunitions. In pursuance of the same, he took P.W.21 and the witnesses to Kurangu Kaadu and from a hide out, he produced the gun [M.O.7] and three ammunitions [M.O.8]. P.W.21 recovered the same in the presence of witnesses. On returning to the Police Station, he forwarded the Inquest Report and handed over the material objects also to the Court. He made a request to the Court to forward the material objects for examination. 5. P.W.11 examined the gun and opined that it was in working condition and the same would have been recently used for shooting. He further gave opinion that the ammunitions found in the body of the deceased could be used in M.O.7. P.W.10 Mr. Ravichandran, examined the other material objects and found that the blood stains on M.Os.1 to 6, viz., the dress materials of the deceased and blood stained earth taken from the place of occurrence, are of human blood. On completing investigation, P.W.1 laid charge sheet against the accused. 6. Based on the above materials, the trial Court framed the above charges as stated in the first paragraph of this judgment. The accused denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 21 witnesses were examined and 23 documents were exhibited, besides 10 material objects. 7. Out of the said witnesses, P.Ws.1 to 4 have stated that, on hearing the noise, when they rushed to the place of occurrence, they found the deceased sitting with injuries. 7. Out of the said witnesses, P.Ws.1 to 4 have stated that, on hearing the noise, when they rushed to the place of occurrence, they found the deceased sitting with injuries. P.W.1 alone has stated about the fact that he saw the three accused running away from the place of occurrence and at that time, the first accused was having a gun in his hand. P.W.5 has spoken about the Observation Mahazar prepared at the place of occurrence and the recovery of material objects like blood stained earth and sample earth. P.Ws.6 and 7 have stated that they are closely related to the deceased and they found the accused at the time of occurrence with a gun and when they enquired, the first accused had told them that he had shot a rabbit and that is why he was having a weapon with him. P.W.11-the Ballistic Expert, has spoken about his opinion regarding gun. P.W.10 has spoken to the fact that there were blood stains on the dress materials of the deceased. P.W.12 has spoken about the photographs taken at the place of occurrence. P.Ws.13 and 14 have spoken about the motive. P.W.15 has spoken about the post-mortem conducted by him and his final opinion regarding the cause of death. P.W.16 has spoken about the arrest of the accused, the disclosure statement made by the first accused and the consequential recovery of M.Os.7 and 8. P.W.19 has spoken about the registration of the case and P.W.21 has spoken about the investigation. P.W.18 has spoken about the registration of the earlier case, which is the motive case. 8. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. On their side, they have marked 6 documents, Exs.D1 to D6. Their defence was a total denial. 9. Having considered all the above, the trial Court convicted all the three accused as stated in the first paragraph of this judgment. Aggrieved over the same, the accused/appellants are before this Court with this appeal. 10. We have heard the learned Senior Counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully. 11. This is a case based on circumstantial evidence. The above said occurrence was at 9.15 p.m. on 11.02.2010 on the backside of the house. 10. We have heard the learned Senior Counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully. 11. This is a case based on circumstantial evidence. The above said occurrence was at 9.15 p.m. on 11.02.2010 on the backside of the house. The actual occurrence was not witnessed by anybody. P.Ws.1 to 4 heard the bang and immediately, they rushed to the place of occurrence. P.Ws.2 to 4 did not see the assailants there. They found only the deceased sitting with injuries. They have stated that, immediately thereafter, the deceased breathed his last. P.W.1 alone has stated that, at that point of time, he found these three accused fleeing away from the scene of occurrence. He has further stated that, at that time, he found the first accused holding the gun. After the occurrence, P.W.1 made the complaint at 1.00 a.m. on 12.02.2010. The distance between the place of occurrence and the police station, as seen from Ex.P13, is 6 kms. Thus, there was sufficient time for P.W.1 to cool down. When he made the complaint, he did not mention these accused at all as the assailants, instead, he mentioned the names of one Andi, Madhu and Ramasamy as the suspected assailants. Had it been true that P.W.1 had seen these three accused fleeing away from the scene of occurrence, by all probabilities, certainly, he would have mentioned the said fact in Ex.P1. But, he has made a completely contrary statement in Ex.P1 stating that, he had suspicion only against one Andi, Madhu and Ramasamy as the assailants. This would go to clearly establish that, P.W.1 would not have seen these three accused fleeing away from the scene of occurrence at all. Thus, the evidence of P.W.1 that these three accused were found fleeing away from the scene of occurrence, is only liable to be rejected. 12. Then comes the evidence of P.Ws.6 and 7. P.W.6 is the brother of P.W.2 and P.W.7 is his friend. According to these two witnesses, they hail from a different village. They came to the occurrence village and when they were returning at about 8.30 p.m., they heard the bang of a shooting. They stopped at that place on hearing the same. At that time, they found the first accused coming towards them with a gun in his hand. According to these two witnesses, they hail from a different village. They came to the occurrence village and when they were returning at about 8.30 p.m., they heard the bang of a shooting. They stopped at that place on hearing the same. At that time, they found the first accused coming towards them with a gun in his hand. The accused 2 and 3 also accompanied them. When they enquired, they told him that they had shot a rabbit. Thus, according to these two witnesses, they found these three accused fleeing away from the scene of occurrence. As we have already pointed out, P.W.6 is none else than the brother of P.W.2. The deceased was none else than his brother-in-law. It is not as though after the above incident, he had gone to his village. Had it been true that they had seen these three accused, that too with a gun, certainly, these two witnesses would have told P.W.1, in which case, P.W.1 would have mentioned about the participation of these accused in Ex.P1. The very fact that he has mentioned the names of three different persons in Ex.P1 would go to show that, P.Ws.6 and 7 would not have seen these two accused at all and they have been only planted by the prosecution purposely. Thus, we are not in a position to accept the evidence of P.Ws.6 and 7. 13. Then comes the arrest of the three accused in the presence of P.W.16. P.W.16 has stated that on the disclosure statement made by the first accused, M.Os.7 and 8 were recovered from a hide out. This fact has been spoken to by P.W.21 also. We do not find any reason to reject this part of the evidence. Therefore, it is crystal clear that the first accused alone was found in possession of M.Os.7 and 8 on the date of arrest. 14. Now, the question is, whether this weapon would have been used to shoot the deceased. Scientifically, this fact can be proved. But, unfortunately, the prosecution has failed to do so. P.W.1, the Ballistic Expert has only stated that M.O.7 was in working condition. He has also stated that the same would have been used recently for shooting. He has further stated that the ammunitions found in the body of the deceased could be used in M.O.7. But, unfortunately, the prosecution has failed to do so. P.W.1, the Ballistic Expert has only stated that M.O.7 was in working condition. He has also stated that the same would have been used recently for shooting. He has further stated that the ammunitions found in the body of the deceased could be used in M.O.7. But, there is no evidence that, actually, M.O.10 was shot from M.O.7, the gun. The evidence is that, M.O.10 could have been used in any gun like M.O.7. Thus, the prosecution has failed to prove that M.O.10 was shot only from M.O.7. The prosecution has also failed to connect M.O.7 which was found in the possession of the accused with the crime. Apart from that, there is no other evidence available against the accused. 15. From the foregoing discussion, it is crystal clear that though the deceased died due to shooting, the prosecution has failed to prove that he was shot at only by the first accused, accompanied by accused 2 and 3. Therefore, they are entitled to acquittal from the charge under Sections 302 IPC as well as 302 r/w 34 IPC. 16. So far as the first accused is concerned, as we have already concluded that he was found in possession of M.Os.7 and 8, he is liable to be punished under Section 25(1B)(a) of the Indian Arms Act. To that extent, the conviction recorded by the trial Court against the first accused deserves to be confirmed. 17. Turning to the quantum of punishment, the trial Court has imposed only a very reasonable quantum for the said offence, which also does not require any interference. Therefore, we are inclined to confirm the sentence imposed on the first appellant for the offence under Section 25(1B)(a) of the Indian Arms Act, alone. In the result, the appeal is partly allowed in the following terms: (1) The conviction and sentence imposed on the first appellant/first accused for the offence under Section 302 IPC are set aside and he is acquitted of the said charge. The fine amount, if any paid, shall be refunded to him for this charge. (2) The conviction and sentence imposed on the first appellant/first accused for the offence under Section 25(1B)(a) of the Indian Arms Act, are hereby confirmed. The fine amount, if any paid, shall be refunded to him for this charge. (2) The conviction and sentence imposed on the first appellant/first accused for the offence under Section 25(1B)(a) of the Indian Arms Act, are hereby confirmed. (3) The conviction and sentence imposed on the appellants 2 and 3/accused 2 and 3 for the offence under Section 302 r/w 34 IPC is hereby set aside and they are acquitted. The fine amount, if any paid, shall be refunded to them.