JUDGMENT : Rajiv Sharma, J. This appeal is instituted at the instance of the State against the judgment dated 2.8.2010, rendered by the learned Addl. Sessions Judge (FTC), Kullu, H.P. in Sessions Trial No. 39/09, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 302, 120-B, 201 IPC read with Section 34 IPC, has been acquitted. 2. The case of the prosecution, in a nut shell, is that Kuber (PW-13) and Bhag Chand deceased had gone to Abgal jungle for purchasing cattle on 27.10.2008 at about 10:00 AM. Kuber (PW-13) was carrying Rs. 50,000/- with him and Bhag Chand (deceased) was carrying Rs. 70,000/- with him. They reached jungle at about 2-2:30 PM. However, no person met them. When they were coming back to village, Moti Ram and Chhota Bhagi met them on the way at about 5:30 PM. One unknown person was also with them. Moti Ram was carrying a gun. Moti Ram and Bhag Chand (deceased) had an altercation. Thereafter, all the persons sat in the jungle. Moti Ram took two bottles of orange liquor and 2-3 glasses. All the persons except Kuber started consuming liquor. Moti Ram and Chhota Bhagi were having torches. They started coming back at about 9-9:30 PM. Unknown person was ahead of them. They came across a tree, which had fallen on the way. They had to kneel down in order to cross the same. When they were crossing the tree, Moti Ram fired at Bhag Chand and Bhag Chand fell down. Moti Ram started loading the gun again and Kuber (PW-13) thought that Moti Ram would shot at him and he jumped and hid in Malander jungle. The money of Kuber was misplaced in the jungle. He reached at Shiv Mandir, Bhunter next day. Namu Devi (PW-2) disclosed in the village on 28.10.2008 that her husband Kuber had gone to Abgal jungle and had not returned to the village. The villagers went in search for them. Roshan Lal telephonically informed Beli Ram (PW-1) that villagers were going to look for Bhag Chand. Intimation was also given to the police, on which HC Yashpal (PW-12) also went towards the jungle. When the villagers went to the jungle, they found one woolen coat (Ext. P-8), slippers (Ext. P-6), Dhathu/handkerchief (Ext. P-7) and Nokia mobile (Ext. Roshan Lal telephonically informed Beli Ram (PW-1) that villagers were going to look for Bhag Chand. Intimation was also given to the police, on which HC Yashpal (PW-12) also went towards the jungle. When the villagers went to the jungle, they found one woolen coat (Ext. P-8), slippers (Ext. P-6), Dhathu/handkerchief (Ext. P-7) and Nokia mobile (Ext. P-5) in the jungle on the footpath, which belonged to Bhag Chand (deceased). The articles were seized vide memo Ext. PW-5/B. The police and villagers found blood lying on the way near Tosh tree and some pellets Ext. P-9 were found over the Tosh tree. These were removed and seized by putting them in a cigarette box after sealing them in a packet with seal “T”. The dead body of Bhag Chand was found lying down the hill. The body was taken to Village Malana. The post mortem was got conducted. On the basis of the statement of Beli Ram Ext. PW-1/A, FIR Ext. PW-9/A was registered. The post mortem was conducted by Dr. Harsh Verdhan PW4 and Dr. N.K. Kapoor. They noticed lacerated wound on the right side of forehead above right eye and also lacerated wound at right pinna. Pellets were recovered and sent for chemical examination. The post mortem report is Ext. PW-4/A. The police arrested the accused. Gun Ext. P-1 was also recovered along with empty cartridge Ext. P-2, live cartridge Ext. P-3 and gun licence Ext. PW-14/G. The case property was sent to FSL, Junga. The report of FSL, Junga is Ext. PW-14/L. On completion of the investigation, challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as fourteen witnesses. The accused were also examined under Section 313 Cr.P.C. They denied the incriminating circumstances put to them. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. M.A. Khan, Addl. Advocate General, appearing on behalf of the State, has vehemently argued that the prosecution has proved the case against the accused. On the other hand, M/S Adarsh Sharma and Naveen K. Bhardwaj, Advocates, have supported the judgment of the learned trial Court dated 2.8.2010. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. On the other hand, M/S Adarsh Sharma and Naveen K. Bhardwaj, Advocates, have supported the judgment of the learned trial Court dated 2.8.2010. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. Beli Ram (PW-1) testified that Bhag Chand was his real younger brother. He came to Bhunter on 28.10.2008 for his personal work. Roshan Lal telephonically informed him that villagers were going to Abgal jungle in search of his brother who had not returned since 27.10.2008. He went towards village Malana. When he reached in the village, at about 2:30 PM, he received the information that dead body of Bhag Chand was recovered near the hill. He went to the spot and saw the dead body. His brother was an agriculturist. On the next day, a telephonic call was received by him from Kuber who told him that when he and his brother along with Moti Ram and Chhota Bhagi were returning towards village Malana with an unknown person, Moti Ram shot his brother. Moti Ram also intended to shoot Kuber but he ran away. The post mortem was got conducted. The dead body was handed over to them. The police recovered some strands from Abgal jungle from a Tosh tree from where the dead body was recovered. These were taken into possession vide memo Ext. PW-1/D. Police also prepared the site plan. He identified Chhota Bhagi at Bhiling. He was arrested by the police. They went towards Chanderkhani and found accused Moti Ram hiding in a cave at a place between place Pulling and Rumsu on 2.11.2008. He was carrying a gun and licence. It was a SBBL gun. He was also carrying five live cartridges and some empty cartridges. He did not remember the number. The police seized and wrapped the same in a piece of cloth. The police also seized the cartridges. In his cross-examination, he admitted that the tree of Tosh was standing from where the strands were recovered. 7. Namu Devi PW-2 deposed that the name of her husband was Bhag Chand. Her husband and Kuber went to buy sheep and goats but did not return from Abgal jungle. The villagers went to fetch them. She did not remember the date. 8. Dr. Harsh Verdhan PW-4 has conducted the post mortem examination of Bhag Chand. 7. Namu Devi PW-2 deposed that the name of her husband was Bhag Chand. Her husband and Kuber went to buy sheep and goats but did not return from Abgal jungle. The villagers went to fetch them. She did not remember the date. 8. Dr. Harsh Verdhan PW-4 has conducted the post mortem examination of Bhag Chand. He found the following injuries on his person: “1. Lacerated wound. Right side of forehead above right eye irregular/obliquely vertical 3 cm x 1 ½ cm with brownish irregular margin surrounding skin shows brownish discolouration. An oval extension of would tapering towards right ear brownish in colour. Blood and lacerated tissue present, Blackish discolouration of tissue present over underlying skull bone broken. 2. Extensive lacerated at right pinna 5 x 3 x 2 inches deep external auditory meatus, underlying bone, brain, tissue lacerated. Tragus and antihelise region of pinna lacerated and missing. Thin helix of pinna still present. Wound extending 2 inches anterior to anteriorly towards injury no. 1 direction margins of wound are jarred with dirt and contamination. Brain matter exuding. Blackish disclolouration of wound material to anterior side. Other injuries on body as described in diagram. Pallets were recovered and sent for chemical examination in separate vial of wound no. 2” In his opinion, the death occurred due to fire arm injury. Injury No. 1 was entry wound and injury No. 2 was exit wound. The death occurred due to hypovolemic and neurogenic shock due to extensive injuries. He issued final opinion that the deceased died due to multiple external injuries of head leading to shock. 9. Budh Ram PW-5 deposed that on 28.10.2008, wife of Bhag Chand was crying in the village by saying that her husband Kuber had not returned from Abgal jungle. The villagers gathered. He and Shahru Ram along with the villagers and police went to search Bhag Chand. They found woolen coat, slippers, dhathu, handkerchief and nokia mobile in the jungle on the footpath. These articles belonged to Bhag Chand. When they went 300 meters ahead, they found dead body of Bhag Chand thrown in a gorge 600 meters down. The police recovered 12 pellets and saw dust from the tree of Tosh. These were put in cigarette packet and seized vide memo Ext. PW-5/A. Kuber told him that Nadda Moti had fired at Bhag Chand. When they went 300 meters ahead, they found dead body of Bhag Chand thrown in a gorge 600 meters down. The police recovered 12 pellets and saw dust from the tree of Tosh. These were put in cigarette packet and seized vide memo Ext. PW-5/A. Kuber told him that Nadda Moti had fired at Bhag Chand. He had run away from the spot and stayed in Dharamshala at Bhunter. He was also re-examined. In his re-examination, he deposed that the police went in search of Moti Ram. He was found in a cave on the way Chanderkhani, Pulga, Rumsu. They identified him and he was arrested by the police. He was carrying single barrel gun and empty cartridges as well as one live cartridge. The licence was also found in his possession. 10. HC Mohinder Singh PW-7 deposed that Const. Anil Kumar deposited six parcels sealed with seal “CH” along with one envelope sealed with seal “CH” with him on 29.10.2008. He made entry in the register No. 19 at Sr. No. 532 and deposited the same in the malkhana. Insp. SHO Sanjay Sharma deposited nine parcels with him on 2.11.2008. Five parcels were sealed with seal “CH” and two were sealed with seal “T” and one was sealed with seal “H”. Again stated that three were sealed with seal “D”, five were sealed with seal “T” and one was sealed with seal “H”. He made entry in register at Sr. No. 533. He handed over eight parcels five of which were sealed with seal “CH”, two were sealed with seal “T” and one was sealed with seal “H” along with sample seal “CH”, “T” and “H” and other documents to HHC Gautam on 9.11.2008 vide RC No. 168 of 2008 with directions to deposit the same at FSL, Junga. 11. Mast Ram (Rtd. HHC) PW-8 deposed that MHC Mohinder Singh handed over five parcels to him on 4.12.2008 vide RC No. 189 with direction to deposit the same at FSL, Junga. Out of these five parcels, three parcels were sealed with seal “D”, one with seal “T” and one parcel with seal “H”. He also handed over sample of seal impressions “D”, “T” and “CH”. Again stated that one parcel was sealed with seal “CH” and not with seal “H”. He deposited these at FSL, Junga on 5.12.2008 under receipt. 12. Out of these five parcels, three parcels were sealed with seal “D”, one with seal “T” and one parcel with seal “H”. He also handed over sample of seal impressions “D”, “T” and “CH”. Again stated that one parcel was sealed with seal “CH” and not with seal “H”. He deposited these at FSL, Junga on 5.12.2008 under receipt. 12. HC Yashpal PW-12 deposed that He was present with the police official at Thushko nallah on 28.10.2008 when he received an information on his cell phone from Prem Sharma that the villagers were going towards jungle in search for a person. He also went towards the jungle along with the accompanying officials. When they reached Abgal jungle after about 6-7 hours at about 3-3:30 PM, he found blood lying on the way near Tosh tree. There were pellets on the tree. 13. Kuber (PW-13) is the material witness. He deposed that he was carrying Rs. 50,000/-. He had borrowed this money from Ganga Ram of village Malana. Bhag Chand stated that he was having Rs. 90,000/-. They reached at Abgal jungle at about 2-2:30 PM. No shepherd met them. They were returning to village Malana. Accused Moti Ram and Chhota Bhagi met them at about 5:00 PM. One unknown person was also with them. Moti Ram was having gun. Moti Ram and Bhag Chand were having arguments in their local Malani language. He did not understand the language. They sat in the jungle. Moti Ram took out two bottles of orange liquor and also took out 2-3 glasses. Other persons started taking liquor. He did not take liquor. All of them started towards village at about 9-9:30 PM. Moti Ram and Chhota Bhagi were having torches. Unknown person was ahead all of them. He was followed by Bhag Chand, thereafter by Moti Ram and by Chhota Bhagi. He was the last. After going for 2-3 minutes, they came across a tree which had fallen on the way. They had to kneel down in order to cross the tree. When they were crossing the tree, Moti Ram fired at Bhag Chand at his back side. Bhag Chand fell down. Moti Ram started loading the gun again. He thought he would shot at him and thereafter he jumped. He hid in Malander jungle. He saw the torch light and thought that they were looking for him. When they were crossing the tree, Moti Ram fired at Bhag Chand at his back side. Bhag Chand fell down. Moti Ram started loading the gun again. He thought he would shot at him and thereafter he jumped. He hid in Malander jungle. He saw the torch light and thought that they were looking for him. He reached Shiv Mandir on the next day at Bhunter. He took a room on rent of Rs. 25/-. He made a telephonic call to Beli Ram, Guard on his telephone. He narrated the incident to the police at P.P. Jari. The police recorded his statement. The dead body of deceased was found on 28.10.2008 by elder brother of the deceased and the villagers. In his cross-examination, he admitted that he was not permanent resident of village Malana but of Nepal. No shepherd from village Malana met him. He only found deras. 14. Insp. Sanjay Sharma, PW-14 testified the he along with SDPO Manali and other police officials went towards the spot to verify the fact. They reached at Malana late in the night and came to know that HC Yashpal had already left towards the spot which was at a distance of about 6-7 hours back from Malana. Beli Ram brother of the deceased got recorded his statement Ext. PW-1/A under Section 154 Cr.P.C. Thereafter, FIR was registered. Kuber (PW-13) was also medically examined. 15. What emerges from the statements recorded hereinabove is that Kuber (PW-13) and Bhag Chand had gone to Abgal jungle to buy cattle. They reached jungle at 2-2:30 PM. No shepherd met them. They started returning to village Malana. Accused Moti Ram and Chhota Bhagi met them at about 5:00 PM. One unknown person was also with them. Moti Ram was having gun. Moti Ram and Bhag Chand were having arguments in their local Malani language. They sat in the jungle. Moti Ram took out two bottles of orange liquor and also took out 2-3 glasses. Other persons started taking liquor except Kuber (PW13). All of them started towards village at about 9-9:30 PM. Moti Ram and Chhota Bhagi were having torches. Unknown person was ahead all of them. He was followed by Bhag Chand, thereafter by Moti Ram and by Chhota Bhagi. Kuber (PW-13) was the last one. After going for 2-3 minutes, they came across a tree which had fallen on the way. Moti Ram and Chhota Bhagi were having torches. Unknown person was ahead all of them. He was followed by Bhag Chand, thereafter by Moti Ram and by Chhota Bhagi. Kuber (PW-13) was the last one. After going for 2-3 minutes, they came across a tree which had fallen on the way. They had to kneel down in order to cross the tree. When they were crossing the tree, Moti Ram fired at Bhag Chand and Kuber (PW-13) ran away from the spot. 16. Kuber (PW-13), in his cross-examination, has deposed that the gun shot was fired by Moti Ram at Bhag Chand from the back side and it hit the head of the deceased. Even in his statement recorded under Section 164 Cr.P.C, he stated that Bhag Chand was followed by Moti Ram, who was followed by Chhota Bhagi and Kuber was the last. However, Dr. Harsh Verdhan PW-4 has noticed injuries on the person of the deceased. The deceased died due to multiple external injuries of head leading to shock. Injury No. 1 was found on the right side of forehead above right eye irregular/obliquely vertical 3 cm x 1 ½ cm with brownish irregular margin. The second injury was extensive lacerated at right pinna 5 x 3 x 2 inches deep external auditory meatus, underlying bone, brain. In case the injuries received by the deceased were on the forehead and if he had been fired from behind, the injuries would have been on the back portion of the body. The gun was also seized from the accused. It was sent for chemical examination. The report of the chemical examiner is Ext. PW-14/L. As per the report, the fired cartridge (E/3) was not fired from the shotgun (E/1). Thus, the gun recovered from the accused was never used in the commission of crime. 17. Kuber (PW-13) testified that the accused Moti Ram fired at Bhag Chand when they were crossing the fallen tree, however, Beli Ram PW-1 has deposed that the tree was not uprooted. This variance in the statements of Kuber (PW-13) and Beli Ram PW-1 also casts doubt on the version of the prosecution. 18. Kuber (PW-13) deposed that he went to the spot along with the police on 30.10.2008. He showed that place to the police. The strands of the coat of Bhag Chand were recovered from the tree. This variance in the statements of Kuber (PW-13) and Beli Ram PW-1 also casts doubt on the version of the prosecution. 18. Kuber (PW-13) deposed that he went to the spot along with the police on 30.10.2008. He showed that place to the police. The strands of the coat of Bhag Chand were recovered from the tree. These were taken into possession by the police. It is specific case of the prosecution that coat and handkerchief were already recovered by HC Yashpal, PW-12 on 28.10.2008. Kuber (PW-13) deposed that he ran away from the spot when he saw accused Moti Ram loading his gun. He remained in the jungle during night. Thereafter, he stayed in Dharamshala at Bhuntar on 28.10.2008 and thereafter on the next day he made a call to the brother of the deceased. Kuber (PW-13) should have gone to the Police Station immediately when he had already reached Bhuntar. He has not disclosed the incident to anybody for 1 ½ days. Kuber (PW-13) has also testified that he has borrowed a sum of Rs. 50,000/- from Ganga Ram for buying cattle. He should have at least informed Ganga Ram about the circumstances in which he has lost the money in the jungle. This conduct of Kuber (PW-13) is unusual. 19. The prosecution has also not explained as to what happened to the pellets which were taken out by Dr. Harsh Verdhan PW-4 and sent to FSL, Junga through HHC Gautam. HHC Gautam was never examined by the prosecution. According to the FSL report Ext. PW-14/L, no pellets were found in Ext. E/5, a piece of skin. The prosecution has not made out any case against the accused under Section 120 B IPC as accused Moti Ram had met the deceased, according to the prosecution, all of a sudden on the way to village. There is no evidence of meeting of minds of the accused. The prosecution has also not proved that the accused was thrown to gorge. Hence, the offence under Section 201 IPC is not maintainable in the instant case. The prosecution has miserably failed to prove the case against the accused. Thus, there is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 2.8.2010. 20. Accordingly, there is no merit in this appeal and the same is dismissed. Bail bonds are discharged.