JUDGMENT : Gopal Krishan Vyas, J. This Criminal Appeal has been filed by the State of Rajasthan against the respondents Guranditta Singh, Chanan Singh @ Chena and Ram Singh in which the State of Rajasthan has challenged the judgment dated 4.4.1991 passed by the learned Addl. District Judge No. 1, Sri Ganganagar in Sessions Case No. 38/1989 whereby the respondents were acquitted from the charges levelled against them for the offences under Sections 302, 302/34, 307/34 I.P.C. and under Section 27 of the Arms Act. 2. As per the facts of the case on 13.4.1989 at about 5.15 A.M. the complainant Pyara Singh lodged an F.I.R. No. 50 at Police Station Padampur, District Sri Ganganagar stating orally therein that he and his nephew jointly are owing agricultural field at Square No. 45, Rohi 39 RB. As per the complainant, his turn to irrigate the agricultural field commenced from 6.38 A.M. to 1.45 A.M. in the night. The owner of agricultural land of Killa No. 0.5, Square No. 44 is Ram Singh Patwari having enmity with him for the dispute of taking water because his turn follows from 1.45 A.M. According to F.I.R. at about 1.00 A.M. in the night of 13.4.1989 he along with his son Sarbjeet Singh and servant Siri, Rajinder and Sohan Singh were going in the water course to take care of water, at that time, Ram Singh and Guranditta Singh sons of Boor Singh and their brother-in-law (Behnoi) Chana @ Chanan Singh and one another person were sitting in Killa No. 5 of Square No. 44. When Ram Singh saw them, he raised voice and made fire from gun towards us and due to fire, the injuries was caused to Rajinder Singh on his right side and he fell down. According to the complainant he and his companion run away from the place of occurrence, but accused persons fired 8-10 shots towards them, at that time, neighbor Banta Singh came and he also received one bullet injury and Rajinder Singh got up to run away and he fell down in Killa No. 1 of Sq. No. 45, who has been taken at home by them but after sometime, when they are going to the hospital in the way he died. It is stated by the complainant that the body of Rajinder Singh is lying in the hospital. 3. No. 45, who has been taken at home by them but after sometime, when they are going to the hospital in the way he died. It is stated by the complainant that the body of Rajinder Singh is lying in the hospital. 3. Upon aforesaid information, F.I.R. No. 50 was registered at Police Station Padampur, District Sri Ganganagar and Investigating Officer commenced investigation and after usual investigation filed charge-sheet against the respondents in the Court of Munsif and Judicial Magistrate, Padampur under Sections 302, 302/34, 307/34 I.P.C. and under Section 27 of the Arms Act. 4. The learned Magistrate committed the case for trial to the Court of Sessions Judge, Sri Ganganagar but later on transferred to the Court of learned Addl. Sessions Judge No. 1, Sri Ganganagar. 5. In the trial, after providing an opportunity of hearing, charge under Section 302 and in the alternative under Sections 302/34 and 307/34 I.P.C. and under Section 27 of the Arms Act was framed against the accused Ram Singh and charge under Sections 302/34 and 307/34 was framed against the two respondents Guranditta Singh and Chanan Singh. Against respondent Guranditta Singh charge under Section 27 of the Arms Act was also framed. 6. All the respondents denied the charges levelled against them and prayed for trial. In the trial statements of 10. prosecution witnesses were recorded. Thereafter, the statement of respondents were recorded under Section 313 Cr.P.C. in which they denied all the allegations levelled by the prosecution and said that on the date of incident Ram Singh was not present at the place of occurrence and Chanan Singh and Jot Singh were in their agricultural field for watering as per their turn, at that time, Pyara Singh, Rajinder Singh and Sohan Singh came at 2'0 Clock in their agricultural field in Sq. No. 44 and said that vacate this land otherwise you will be killed. 7. According to the statement made under Section 313 Cr.P.C. by Chanan Singh and Guranditta Singh, Pyara Singh made fire from gun and Pyara Singh caused injury to Rajinder Singh due to mistake who was with them. It is state by the respondents Guranditta Singh and Chanan Singh that they were not having any weapon in the night when they were watering as per their turn in Killa No. 44. It is state by the respondents Guranditta Singh and Chanan Singh that they were not having any weapon in the night when they were watering as per their turn in Killa No. 44. According to the respondents the complainant party entered in their agricultural field and gave threatening that they should vacate the land otherwise they will face consequences. Thereafter, due to fire by the complainant party, the fire arm injury was caused to Rajinder Singh, therefore, he died. 8. After recording statement under Section 313 Cr.P.C. an opportunity to lead evidence was given to the defence and in defence statement of DW-1 Mst. Manjeet Kaur were recorded by the learned Trial Court. 9. The learned Trial Court after hearing arguments considered the statements of 10 prosecution witnesses and gave finding that prosecution has failed to prove its case beyond reasonable doubt, therefore, acquitted the respondents from the charge levelled against them vide judgment dated 4.4.1991. 10. Learned Public Prosecutor vehemently argued that it is a case in which fire arm injury was caused by the accused Ram Singh as per the statement of the eye-witnesses PW-1 Pyara Singh and PW-3 Sarvajeet Singh, but the learned Trial Court completely disbelieved the testimony of these witnesses without any basis of law, therefore, it is case in which although prosecution has proved its case beyond reasonable doubt leading evidence of eye-witnesses PW-1 Pyara Singh and PW-3 Sarvjeet Singh, but the learned Trial Court disbelieved the testimony of these eye-witnesses and gave finding contrary to the evidence on record, therefore, the judgment impugned deserves to be quashed. 11. Learned Public Prosecutor further argued that it is a case in which guns were recovered at the instance of two respondents and those guns were serviceable as per the F.S.L. report, therefore, it is a case in which it is obvious that learned Trial Court has committed an error while rejecting the testimony of eye-witnesses-without any basis of law, therefore, the judgment impugned may kindly be quashed and the respondents may kindly be punished for committing offence. 12. Learned Public Prosecutor further argued that incident took place at about 1.00 A.M. in the night and moon was set about less than half an hour, therefore, it cannot be said that incident was not seen by eye-witnesses, therefore, the finding of the learned Trial Court to disbelieve the testimony of eye-witnesses deserves to be quashed. 12. Learned Public Prosecutor further argued that incident took place at about 1.00 A.M. in the night and moon was set about less than half an hour, therefore, it cannot be said that incident was not seen by eye-witnesses, therefore, the finding of the learned Trial Court to disbelieve the testimony of eye-witnesses deserves to be quashed. While inviting attention towards the finding of the learned Trial Court that the complainant party was aggressor party it is submitted that there is not cogent evidence on record to prove the fact that complainant party was aggressor. More so, the complainant party was going on for taking water as per their turn but all of sudden respondent Ram Singh made fire upon Rajinder Singh and due to said fire injury he died. Therefore, it is fundamental principle of law that testimony of eye-witnesses cannot be disbelieved merely on the basis of presumption, therefore, the judgment impugned deserves to be quashed. 13. Learned Public Prosecutor submits that the finding given by the Trial Judge about the testimony of PW-8 Ramjilal is most important because the learned Trial Court accepted that as per testimony of PW-8 Ramjilal S.H.O. the respondent Ram Singh was not present at the time of occurrence took place, but this fact is not correct because PW-8 Ramjilal S.H.O. gave undue favour to the defence under the pressure of local M.L.A., therefore, the learned Judge was under obligation to consider this aspect of the matter so as to acquit the respondents from the charges levelled against them. The learned Judge has wrongly relied upon the testimony of DW-1 Mst. Manjeet Kaur with regard to accept the fact that Ram Singh was not present at the time of occurrence took place because she is wife of Ram Singh respondent. 14. According to the learned Public Prosecutor the occurrence took place in the mid night when complainant party was working in their agricultural field as per the turn of water and at that time, the respondents caused fire arm injury to Rajinder Singh (deceased) and due to that injury, he died, therefore, it is a case in which prosecution has proved its case beyond reasonable doubt, but the learned Trial Court disbelieved the testimony of eye-witnesses erroneously, therefore, the judgment impugned may kindly be quashed. 15. 15. Per contra, learned Counsel appearing for the respondents submits that whole prosecution case is false which is evident from the fact that in the charge-sheet list of 26 witnesses were given, but during trial the statements of only 10 witnesses were recorded out of 26 witnesses to which PW-1 Pyara Singh is complainant, PW-3 Sarvajeet Singh is son of Pyara Singh and both are claiming that they are eye-witnesses, but none of the other witnesses supported their allegations, so also, one eye-witness Sohan Singh (PW-7) who was present at the time of occurrence, turned hostile and did not support the allegations levelled by the eye-witnesses. Further, there is no other witness on record to support the allegations of these two eye-witnesses. 16. Learned Counsel appearing for the respondents further argued that as per the finding of the learned Trial Court, although the two guns were recovered as per the information given by the accused Guranditta Singh and Ram Singh, but in the F.S.L. report a clear cut finding is given that no opinion can be given from the fact that these guns were used, so also, there is no evidence that cartridges found upon the place of occurrence were fired from the gun, therefore, in absence of any incriminating evidence to support the evidence of eye-witnesses, it cannot be said that prosecution has proved its case beyond reasonable doubt. It is also submitted that although in the list of witnesses, names of as many as 26 persons were shown but only 10 witnesses were produced before the Court to prove the prosecution case, out of which there are two witnesses PW-1 Pyara Singh and PW-3 Sarvjeet Singh, father and son who made allegations against the respondents, but their testimony is not supported by any evidence, therefore, on the basis of such type of allegations levelled by so called eye-witnesses which is not supported by any other evidence, the learned Trial Court acquitted the respondents from the charge levelled against them in which there is no illegality. 17. According to the learned Counsel for the respondents it is case in which the prosecution has completely failed to prove its case beyond reasonable doubt, therefore, this appeal may kindly be dismissed. 18. 17. According to the learned Counsel for the respondents it is case in which the prosecution has completely failed to prove its case beyond reasonable doubt, therefore, this appeal may kindly be dismissed. 18. After hearing the learned Counsel for the parties, we have perused the entire evidence and finding given by the learned Trial Court for acquittal of the respondents from the charges levelled against them. 19. Admittedly, the PW-8 Ramjilal Investigating Officer of the case stated before the Court that in his investigation it is found that Ram Singh against whom there is allegation of inflicting fire arm injury was not present. The said witness categorically stated that ^^eSaus bl ckcr~ xokgku ds c;ku fy[ks Fks fd okds ds oDr jkeflag eqyfte dgka FkkA xokgku ds c;ku ls eq>s ;g irk pyk Fkk fd okds ds oDr jkeflag vius ?kj ij ineiqj eaMh esa FkkA tks c;kukr izn'kZ Mh0 7 xokg cynsodkSj] xokg lkSnkxjflag izn'kZ Mh0 8 o xokg xqjn'kZuflag c;ku izn'kZ Mh0 9 xokg pj.kflag c;ku izn'kZ Mh0 10 esjs dyeh o nLr[krh gSA okds dh txg ineiqj eaMh 9 fdyksehVj nwj gSaA jkeflag eqyfte dk pkyku 302@109 vkbZ0ih0lh0 esa fd;k x;k vkSj flQZ 302 vkbZ0ih0lh0 esa ugha fd;k x;k gS ;g ckr lgh gS vkSj mldk pkyku vly dkfry ds :i esa ugha fd;k x;k gSa ;g ckr lgh gSaA^^ 20. It is very strange that from the prosecution side, a specific ground is taken in the appeal in which it is alleged that Investigating Officer PW-8 Ramjilal S.H.O. made undue favour to the defence under the pressure of local M L A. In our opinion, such type of allegation against the Investigating Officer has rightly been ignored by the learned Trial Court because Courts are required to believe upon the investigation made by the Investigating Officer independently. No such allegation against the Investigating Officer can be accepted without any material evidence on record. Therefore, the finding to accept the statement of PW-8 Ramjilal is not erroneous in which he said that respondent Ram Singh was not present at the place of occurrence. 21. It is also very important to mention here that none of the independent witnesses of recovery of gun as per the information of accused Ram Singh and Guranditta Singh produced before the Court to prove the fact of recovery of gun from them. 21. It is also very important to mention here that none of the independent witnesses of recovery of gun as per the information of accused Ram Singh and Guranditta Singh produced before the Court to prove the fact of recovery of gun from them. As per finding of the learned Trial Court the prosecutions has failed to prove the act that cartridges recovered from the place of occurrence was fired from the gun recovered at the instance of the respondents. In this behalf, we have perused the F.S.L. report (Ex.P-33) dated 30.3.1990 and Ex.P-34 and Ex.P-35. Upon perusal of these F.S.L. reports it is abundantly clear that prosecution has failed to prove its case whether the fire arm injury caused to the deceased Rajinder Singh was caused by the gun recovered at the instance of the respondents. The learned Trial Court after taking into consideration of the evidence gave finding that prosecution has not proved its case beyond reasonable doubt. We are in complete agreement with the argument of the learned Counsel for the respondents that finding given by the learned Trial Court that prosecution has not proved its case beyond reasonable doubt because there is no evidence to connect the allegation of so called eye-witnesses for the incident which is said to be occurred in the night at 1.00 A.M. There is no evidence to prove the fact that Ram Singh Patwari was present at the time of occurrence, more so, as per statement of Investigating Officer in his investigation it is found that Ram Singh was not present at the time of occurrence took place on the place of occurrence. It is also one of the important fact that out of 26 witnesses in the list of witnesses, only 10 witnesses were produced before the Court to support the prosecution case, out of which only two witnesses PW-1 Pyara Singh and PW-3 Sarvjeet Singh father and son who made allegations against the respondents for causing fire arm injury but there is no supportive or corroborative evidence on record, more so, the independent eye-witness PW-7 Sohan Singh turned hostile and did not support the prosecution case. In view of the above, we are of the opinion that finding given by the learned Trial Court for acquittal of the respondents does not require any interference. Hence, this Criminal Appeal filed by the State of Rajasthan is hereby rejected.