JUDGMENT : This appeal has been filed by the accused-appellants challenging judgment and order dated 07.10.1991 passed by the Special Court, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Kota (for short ‘the trial court’) whereby the accused-applicants have been convicted and sentenced in the manner as indicated below: NAME OF ACCUSED SECTIONS SENTENCE Beant Singh 302 IPC Life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo three months’ rigorous imprisonment. 324 IPC One year’s rigorous imprisonment. 323/34 IPC Six months’ rigorous imprisonment. Sukhwant Singh Kartar Singh 302/34 IPC Life imprisonment with fine of Rs. 100/-, in default of payment of fine to further undergo three months’ rigorous imprisonment. 324/34 IPC One year’s rigorous imprisonment. 323 IPC Six months’ rigorous imprisonment. 2. Facts of the case are that one Jagjeet Singh accompanied by Ranjeet Singh came to Police Station Sultanpur at 1.00 A.M. on 07.12.1989 and submitted oral report stating therein that on the previous day at 9:10 A.M., the informant party had quarreled with Beant Singh and others, in which their parents had received injuries. Again in the evening at about 8.00 P.M., while the informant accompanied by his brothers Ranjeet Singh and Harjeet Singh (since deceased) were coming along side the canal, they were suddenly confronted by appellants and 4 other persons. Bhag Singh, one of the accused exhorted his companions to kill all three of them (i.e. informant and his two brothers). Appellant Beant Singh fired a shot from his gun at Harjeet Singh which hit his stomach. Harjeet Singh died on spot. When the informant attempted to remove the dead body, co-accused Santa Singh fired on the knee of the informant. At the same time, Beant Singh opened second fire, which hit right hand of Ranjeet Singh. Kartar Singh, Sukhwant Singh, Jeet Singh and Shiv Raj Singh inflicted injuries by sharp edged weapons upon Ranjeet Singh. Upon raising hue and cry, Sakattar Singh and Parkat Singh arrived there. The assailants then fled away. 3. On the basis of aforesaid oral report, the police registered FIR No. 165/1989 (Exhibit P-18) for offence under Sections 147, 148, 149, 302, 307 IPC and commenced investigation. Site was inspected. Site plan and Inspection Notes (Exhibit P-19) were prepared. Inquest memo (Exhibit P-1) of dead body of Harjeet Singh was prepared. Blood stained earth was taken from the site. On the basis of aforesaid oral report, the police registered FIR No. 165/1989 (Exhibit P-18) for offence under Sections 147, 148, 149, 302, 307 IPC and commenced investigation. Site was inspected. Site plan and Inspection Notes (Exhibit P-19) were prepared. Inquest memo (Exhibit P-1) of dead body of Harjeet Singh was prepared. Blood stained earth was taken from the site. An empty 12 bore cartridge was recovered vide memo Exhibit P-4 from the site. Postmortem of dead body was conducted. All 7 accused were arrested. Recoveries of some weapons were made on the basis of information given by them. 12 bore gun was recovered vide Exhibit P-22 from appellant Beant Singh. On conclusion of investigation, challan was filed against 7 accused persons including the present appellants before the Court of Magistrate concerned wherefrom the case was made over to the trial court. The trial court framed charges under Sections 148, 302/149, 326/149, 324/149 and 302/114 IPC against the accused persons, which they denied and claimed trial. The prosecution in support of its case produced 13 witnesses and exhibited 40 documents. Thereafter, the accused-appellants were examined under Section 313 Cr.P.C. wherein they pleaded innocence. In defence though no witness was examined but 6 documents were exhibited. Upon conclusion of trial, the trial court vide it’s judgment dated 07.10.1991 acquitted accused Bhag Singh, Santa Singh, Jeet Singh and Shivraj Singh of the charges framed against them, further acquitted the accused-appellants of the charges under Sections 148, 326/149 IPC and Section 3/25 of the Arms Act but convicted and sentenced them in the manner indicated above. Hence, this appeal. 4. Mr. V.R. Bajwa, learned counsel for the accused-appellants argued that the trial court has erred in convicting the appellants without any reliable evidence while believing the version set out by the prosecution which suffers from patent infirmities. The complainant party has come out with garbled version. It has concealed material facts leading to the alleged occurrence. Facts have been given willful twist to conceal the guilt of the complainant party. The complainant party has withheld the genesis of the occurrence. The actual proximate cause of quarrel has not been disclosed. The incident has taken place in some other manner and circumstances. In fact, the informant Jagjeet Singh (P.W.9) was not present near the scene of occurrence at the time when deceased Harjeet Singh was assaulted. The complainant party has withheld the genesis of the occurrence. The actual proximate cause of quarrel has not been disclosed. The incident has taken place in some other manner and circumstances. In fact, the informant Jagjeet Singh (P.W.9) was not present near the scene of occurrence at the time when deceased Harjeet Singh was assaulted. Absence of injuries on the person of informant Jagjeet Singh is a strong pointer to the fact that he was not present there. There is glaring conflict between the medical testimony on the one hand and the ocular testimony on the other hand. From the description of injuries of deceased Harjeet Singh, the gun shot appears to have hit him at his back and not in his front. Consequently, it was not possible for the witnesses to have grasped the identity of the author of the fatal fire. The injury on the deceased per se does not appear to have been caused by a 12 bore gun. Presence of tattooing around the wound of entry makes it a case of fire from very close proximity. Thus, the testimony of witnesses stands falsified. 5. It is argued that the prosecution has tried to take advantage of the injuries, which were received during the morning incident. Vide injury report (Exhibit D-4A), injured Ranjeet Singh had allegedly received 5 injuries on his person during the incident, which had taken place earlier in the morning. He got himself examined for these injuries in the noon at 12:50 P.M. on 06.12.1989. Again on 07.12.1989, he got himself examined vide injury report (Exhibit P-9) for the injuries, which were allegedly received by him during second incident, which had taken place in the night. Thus, there is an obvious overlapping of injuries. As per version of the complainant party, the second incident had taken place at 8.00 P.M. in the month of December. Admittedly the assault was committed under the cover of darkness, therefore, no one could have normally identified the assailants in the darkness. The prosecution has during the trial changed its original case which was stated in the first information report. There are obvious contradictions appearing in the statements of two eye witnesses, namely Ranjeet Singh and Jagjeet Singh, who have contradicted each other on numerous aspects of the assault. The appellants had no motive to kill the deceased Harjeet Singh. The prosecution has during the trial changed its original case which was stated in the first information report. There are obvious contradictions appearing in the statements of two eye witnesses, namely Ranjeet Singh and Jagjeet Singh, who have contradicted each other on numerous aspects of the assault. The appellants had no motive to kill the deceased Harjeet Singh. Learned counsel argued that the trial court had been invested with the special powers to have trials in cases relating to Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) and as such, it was not empowered to hold trial in ordinary IPC cases. The charges framed against the appellants were defective and the same has resulted in causing grave prejudice to appellants. 6. Mr. V.R. Bajwa, learned counsel argued that Dr. R.D. Verma (P.W.5) in his Court statement described that there was penetrating wound with blood having tattooing margins around it with inverted margins, which was round in shape having 9 c.m. diameter and present on left side of the chest between 5th and 6th ribs of the deceased. He further described that there was penetrating wound with inverted margins in the size of 7 c.m., which was round in shape and present on right side of the chest between 8th and 9th ribs of the deceased. It is argued that under order of this Court, aforesaid doctor was recalled and his statement was recorded by this Court wherein he submitted that by 9.0 c.m. diameter he meant circumference and not the diameter and that he made a mistake in the earlier statement by referring circumference as diameter. But when a specific query was put to him as to whether this fire arm injury could have been caused by bullet or pellet, he replied that it must have been caused by bullet. It rather suggests that gun shot hit the deceased from back side and made exit wound from the front, which completely falsify the version given by Jagjeet Singh (P.W.9) and Ranjeet Singh (P.W.10), the so-called eye witnesses. In either case, the firearm shot entry wound between 5th and 6th ribs and exist wound between 8th and 9th ribs, were bound to cause some internal damage, which has not been proved. Therefore, it is clear that genesis of the incident has been concealed from the court. In either case, the firearm shot entry wound between 5th and 6th ribs and exist wound between 8th and 9th ribs, were bound to cause some internal damage, which has not been proved. Therefore, it is clear that genesis of the incident has been concealed from the court. Moreover, the doctor has further stated that on dissection of the track, he found that the bone did not intervene anywhere in between and there was no damage or injury to any part of the bone near about the track. Moreover, when the injury to the deceased was caused by a firearm, it is surprising that neither a single bullet, nor a pellet was found inside the body. The more surprising fact is that the entry wound was described to be bigger in size than the exit wound, which is scientifically not possible. Learned counsel submitted that armorer, Chhagan Singh (P.W.8) has stated that he did not test fire the gun to determine when it was last fired, which clearly shows that the prosecution has failed to prove whether the gun recovered at the instance of the appellant was actually used in the incident. It appears that the injury was not caused by 12 bore gun but it was caused by rifle. This further falsify version of the prosecution because Jagjeet Singh (P.W.9) has stated that as per MLR of Ranjeet Singh (Exhibit P-9), he sustained a gun shot injury at back of right hand and lower 1/2 of right forearm. This MLR has been proved by Dr. I. Haq (P.W.4), who has stated that injury no. 2 and 3 were gunshot wounds behind left forearm. There were opacities of multiple radiopaque metallic density on right hand and forearm. Thus, statement of doctor clearly shows that the injured Ranjeet Singh sustained injuries by pellets. Learned counsel, in support of his arguments, cited relevant portions from the books titled Forensic Ballistics in Criminal Justice authored by K. Kumar (Eastern Book Company) and Firearms in Criminal Investigation & Trails authored by B. R. Sharma (Universal Law Publishing). 7. Learned counsel argued that allegation of opening fire was against Beant Singh and Santa Singh. Santa Singh has been acquitted as no gun was recovered from him and only Beant Singh has been convicted, which shows that genesis of the occurrence has been withheld by the prosecution. 7. Learned counsel argued that allegation of opening fire was against Beant Singh and Santa Singh. Santa Singh has been acquitted as no gun was recovered from him and only Beant Singh has been convicted, which shows that genesis of the occurrence has been withheld by the prosecution. While ‘gandasi’ has been recovered at the instance of Kartar Singh vide Exhibit P-8, ‘kulhadi’ has been recovered at the instance of Sukhwant Singh vide Exhibit P-21, but Jagjeet Singh (P.W.9) in his statement has assigned ‘gandasi’ to Kartar Singh and ‘krapan’ to Sukhwant Singh on allegation of causing injury to the injured but on the other hand Ranjeet Singh (P.W.10) has alleged that Sukhwant Singh had ‘kulhadi’ and Kartar Singh had ‘gandasi’ and caused injuries to him. MLR of Ranjeet Singh (Exhibit P-9) would show that injury no. 1 and 4 caused to him though were incised wounds, but both were simple in nature and on non-vital parts. Injury no. 5 and 6 which were on right parietal and left parietal bone of the skull were lacerated wounds and were again simple in nature. However, ‘gandasi’ and ‘kulhadi’ recovered at the instance of accused-appellant Kartar Singh and Sukhwant Singh were not found to contain any blood stains. Learned counsel argued that recovery of ‘gandasi’ at the instance of accused-appellant Kartar Singh vide memo Exhibit P-8 becomes doubtful because Karam Singh (P.W.3), father of the deceased in his statement clearly stated that ‘gandasa’ was found lying near the dead body. Moreover, Jagjeet Singh (P.W.9) in his statement before the Court has completely denied that an incident took place in the morning or that any FIR was filed thereabout, for causing injuries to Karam Singh, Kalu Singh and Rana Singh, nor any cross cases were registered by the parties with regard to that incident. As against this, Ranjeet Singh (P.W.10) has admitted such incident to have taken place in the morning. Learned counsel submitted that FIR lodged by Gurdev Singh of accused party against Karam Singh, Kalu Singh and Rana Singh of the complainant party has been placed on record as Exhibit D-2 and injuries reports of Ranjeet Singh, his mother Jasveer Kaur and father Karam Singh as Exhibits D-4A, D-5A and D-6A respectively. 8. Learned counsel submitted that FIR lodged by Gurdev Singh of accused party against Karam Singh, Kalu Singh and Rana Singh of the complainant party has been placed on record as Exhibit D-2 and injuries reports of Ranjeet Singh, his mother Jasveer Kaur and father Karam Singh as Exhibits D-4A, D-5A and D-6A respectively. 8. Learned counsel submitted that in the injury report of Ranjeet Singh (Exhibit D-4A), in respect of the incident of morning, he is shown to have sustained five injuries whereas in the injury report that was prepared in regard to the incident of evening, he is shown to have sustained six injuries. However, the doctor, who prepared injury report of Ranjeet Singh in the evening has completely omitted to mention any one of five injuries indicated in MLR (Exhibit D-4A). This clearly shows that both the injury reports have been fabricated, otherwise there is no reason why the doctor, who examined the injured in the evening would not have indicated all the injuries. He, at the best, could have in respect of the injuries of the morning incident described their duration to be longer than the injuries that were caused in the evening. 9. Learned counsel referring to page no. 34 of the impugned judgment argued that the trial court has recorded a finding that all the recovered weapons were allegedly sent to forensic science laboratory, but no such report has been placed on record and therefore it has not been proved whether these weapons were actually used in the incident or not. Thus, recovery of weapons does not, in any manner help the prosecution. It is argued that while one empty cartridge was recovered from the place of occurrence, one 12 bore country made gun with three live cartridges and one empty cartridge was recovered at the instance of accused-appellant Beant Singh vide memo Exhibit P-22, which as per the opinion of doctor was not used for firearm injury of the deceased. Such recovery, therefore, does not inspire any confidence. 10. Learned counsel alternatively argued that incident in the present case took place on a trifle dispute when the harvester used by the complaint party caved in the canal. At that time, it was turn of the complainant party to take water from the canal for irrigating their agricultural field. In the evening, this led to dispute between the parties. 10. Learned counsel alternatively argued that incident in the present case took place on a trifle dispute when the harvester used by the complaint party caved in the canal. At that time, it was turn of the complainant party to take water from the canal for irrigating their agricultural field. In the evening, this led to dispute between the parties. It is alleged that Santa Singh and Beant Singh started abusing complainant party. While Beant Singh had a gun and he allegedly caused firearm injury to the deceased. But the complainant party has made false and over implication alleging that Santa Singh also opened fire but allegation against him has not been proved and therefore he has been acquitted by the learned trial court. Allegations of causing injuries to Ranjeet Singh have also been made against Sukhwant Singh, Shivraj Singh, Jeet Singh and Bhag Singh. While, Jagjeet Singh (P.W.9) has denied morning incident, Ranjeet Singh (P.W.10) has clearly admitted that an incident took place in the morning when the water supply to the agricultural field of the accused was stopped in which incident, injuries were sustained by Ranjeet Singh himself, his mother and father. Incident in the evening has thus taken place in a sudden fight, in heat of passion on a very trivial issue at the spur of moment. Since as per the prosecution, only one fire was opened by the accused, he cannot be held to have taken undue advantage of his act and his offence would therefore fall in the purview of Section 304 Part II, IPC. It is argued that considering that the appellant Beant Singh has already remained in jail for 3 years and 7 months and the incident pertains to the year 1989 when he was hardly 23 years old, this Court may consider altering his conviction to Section 304 Part II IPC and he may be sentenced to a period of imprisonment already undergone by him. Learned counsel for the appellants, in support of his arguments, cited judgments of the Supreme Court in Ram Autar & Others Vs. State of U.P., JT 2016 (11) SC 342 and Daya Nand Vs. State of Haryana, JT 2008 (5) SC 336. 11. Mr. R.S. Raghav, learned Public Prosecutor opposed the appeal and argued that despite certain discrepancies in the statement of Dr. State of U.P., JT 2016 (11) SC 342 and Daya Nand Vs. State of Haryana, JT 2008 (5) SC 336. 11. Mr. R.S. Raghav, learned Public Prosecutor opposed the appeal and argued that despite certain discrepancies in the statement of Dr. R.D. Verma (P.W.5), he in his statement subsequently recorded by this Court has clarified that size of the entry wound indicated by him in the post mortem report was 9 c.m. and it was circumference in the size and not diameter, which was indicated by him in injury no. 1 of post mortem report. This witness was quite candid in stating in response to various queries of this Court that he was not ballistic expert and therefore he could not answer the questions and also submitted that it was his first post mortem report so far as firearm injury is concerned. Even then, he stated that he was deposing as per his knowledge based on Modi’s Jurisprudence. In these circumstances, if he has stated that this was a bullet injury and not pellet injury, it should be read in correct perspective. In any case, opinion of the expert is only advisory in nature and does not bind the court especially when the eye witness count is clear and categorical that it was Beant Singh, who was responsible for causing firearm injury and country made gun was also recovered at his instance. It is argued that however, presence of the bullet inside body of the deceased could not be established, but that minor lapse on the part of the prosecution should not be a reason to discard testimony of eye witnesses, which sufficiently proves guilt of the accused-appellants beyond reasonable doubt. Learned Public Prosecutor referred to statements of various prosecution witnesses and submitted that charges are proved not only against Beant Singh, but also against accused-appellants Kartar Singh and Sukhwant Singh. Learned Public Prosecutor, in support of his arguments, relied on the judgments of the Supreme Court in Ghurey Lal Vs. State of U.P., (2008) 10 SCC 450 ; Himanshu Mohan Rai Vs. State of U.P. and Others, (2017) 4 SCC 161 ; Anvaruddin & Others Vs. Shakoor & Others, (1990) 3 SCC 266 and Amar Singh Vs. Balwinder Singh & Others, (2003) 2 SCC 518 . 12. We have given our anxious consideration to rival submissions and carefully examined the material on record. 13. State of U.P. and Others, (2017) 4 SCC 161 ; Anvaruddin & Others Vs. Shakoor & Others, (1990) 3 SCC 266 and Amar Singh Vs. Balwinder Singh & Others, (2003) 2 SCC 518 . 12. We have given our anxious consideration to rival submissions and carefully examined the material on record. 13. No doubt there is some discrepancy in the statement of Dr. R. D. Verma (P.W.5), who conducted post mortem of the deceased and proved the same before the trial court. He indicated injury no. 1 as penetrating wound with blood, tattooing margins all around and inverted margins and it was in the size of 9 c.m. diameter between 5th and 6th rib on the left chest. He also indicated injury no. 2 as penetrating wound with blood having inverted margins and it was in the size of 7 c.m. between 8th and 9th rib of the right side of chest. But when this witness was called for re-examination by this Court, he clarified that due to inadvertent mistake on his part, he mentioned circumference as diameter and actually he intended to convey so. This witness in response to various pointed queries by the Court has submitted that he was not ballistic expert, therefore, he could not answer the questions from that angle. But he stated that injury no. 1 was entry wound and entry no. 2 was exit wound and the distance range from which fire arm was opened should be between 60 c.m. to one meter. The margins were inverted so far as injury no. 1 is concerned and there was tattooing in the margins and it was in circular form and this gave an indication that the injury was caused by fire arm. Tattooing was caused by burnt and unburnt carbon particles. In burning there will be singing of hair and peeling of the skin and red line of demarcation. In blackening there are impressions of burnt carbon particles. In view of above, even if therefore, in response to one of the queries, answer of this witness was that injury appeared to have been caused by bullet, this cannot form basis for completely discarding testimony of eye witnesses, who proved the guilt of the accused-appellant Beant Singh beyond reasonable doubt. In blackening there are impressions of burnt carbon particles. In view of above, even if therefore, in response to one of the queries, answer of this witness was that injury appeared to have been caused by bullet, this cannot form basis for completely discarding testimony of eye witnesses, who proved the guilt of the accused-appellant Beant Singh beyond reasonable doubt. But at the same time, this Court finds that the witnesses in their zeal to over implicate the accused ended up not giving clear picture so far as injuries of Ranjeet Singh (P.W.10) are concerned. 14. Ranjeet Singh (P.W.10) has stated that he was operating harvester (a machine used for extracting rice from the crop), which caved in the canal. This canal was supplying water to the agricultural field of the accused. Gurdev Singh and Baldev Singh objected to stoppage of water and a quarrel took place in which, he, his father and mother sustained injuries. FIR with regard to that incident was lodged in the police station and Gurdev Singh and Baldev Singh also registered a cross FIR. This witness stated that his medical examination for injuries sustained in that incident took place around 12.30 in the noon at hospital in Digod. It is in this background that this witness has referred to the incident which took place in the evening by stating that around 8.00 P.M. when they were returning after harvesting their rice crop, Bhag Singh met them on the way. He asked other accused to catch hold of members of the complainant party. Beant Singh opened fire at Harjeet Singh, which hit his stomach and he died then and there. Beant Singh opened second fire, which hit at the back of his right hand. He then alleged that Santa Singh opened fire, which hit his right knee. Kartar Singh inflicted ‘gandasi’ blow on his head. Jeet Singh inflicted ‘barchi’ blow on his leg. Thereafter, Sukhwant Singh, Shivraj Singh, Jeet Singh, Kartar Singh, Bhag Singh, all started beating him, with all kind of weapons. Shivraj had ‘sword’; Sukhwant had ‘kulhadi’; Jeet Singh had ‘barchi’; Kartar Singh had ‘gandasi’ and Bhag Singh had ‘lakdi’. 15. As against this, Jagjeet Singh (P.W.9) has remained silent about the incident, which took place in the morning. Thereafter, Sukhwant Singh, Shivraj Singh, Jeet Singh, Kartar Singh, Bhag Singh, all started beating him, with all kind of weapons. Shivraj had ‘sword’; Sukhwant had ‘kulhadi’; Jeet Singh had ‘barchi’; Kartar Singh had ‘gandasi’ and Bhag Singh had ‘lakdi’. 15. As against this, Jagjeet Singh (P.W.9) has remained silent about the incident, which took place in the morning. But regarding incident of evening, he stated that Beant Singh and Santa Singh had guns; Kartar Singh had ‘gandasa’; Bhag Singh had ‘kripan’; Ajeet Singh had ‘kuhadi’; Sukhwant had ‘kripan’ and Shivraj Singh had ‘lakdi’. Beant Singh opened fire which hit his brother Harjeet Singh as a result of which he fell on the ground. Then, Santa Singh opened fire which hit his brother Ranjeet Singh on his knee. In fact, in the MLR of Ranjeet Singh (Exhibit D-4A) prepared for the morning incident of present case, the doctor has indicated only five injuries. Ranjeet Singh sustained further injuries in the evening incident, but there is no reason for not indicating that injury in the injury report that was prepared in the evening. As has been rightly argued, doctor, who prepared subsequent injury report could have given different duration for those five injuries rather than not mentioning them in the injury report (Exhibit P-9). It has not been made clear that on what basis he excluded that firearm injury from the injury report which was prepared in the evening. 16. These two witnesses are consistent in so far as fire arm injuries sustained by Harjeet Singh and Ranjeet Singh are concerned, however, their testimony with regard to role attributed to other accused is not so categorical. The trial court has itself disbelieved and acquitted not only Shivraj Singh; Jeet Singh; Bhag Singh but also Santa Singh with regard to whom it was alleged that he opened fire which hit right knee of Ranjeet. Although, learned counsel for the appellants had tried to discredit these eye witnesses by relying authorities from the ballistic experts K. Kumar and B.R. Verma, but we are, keeping in view the evidence in totality, not inclined to completely discard testimony of eye witnesses insofar as accused-appellant Beant Singh is concerned. However, in view of various contradictions, we find that allegations against other two accused-appellants Kartar Singh and Sukhwant Singh are not fully corroborated so much so a case is made out for extending benefit of doubt to them. However, in view of various contradictions, we find that allegations against other two accused-appellants Kartar Singh and Sukhwant Singh are not fully corroborated so much so a case is made out for extending benefit of doubt to them. 17. We may at this juncture refer to judgment in Himanshu Mohan Rai (supra), in which case the Supreme Court while repelling similar argument, observed that it was not possible to reject the credible ocular evidence of the eye witnesses, who witnessed the shooting and who were found to be truthful only because in that case the police failed to recover actual weapon used for crime. The Supreme Court in Anvaruddin & Another (supra) while considering effect of obscure and oscillating evidence of the ballistic expert observed as under:- “10. …….. In this nebulous state of the evidence of the ballistic expert we are of the view that the High Court was wholly wrong in doubting the direct evidence of the three eye-witnesses on this ground. Where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye-witnesses on such uncertain evidence. In such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements……..” 18. In Brijpal Singh Vs. State of Madhya Pradesh, (2003) 11 SCC 219 it was observed by the Supreme Court that though there was reliable ocular evidence of the accused having shot the deceased, but the ballistic expert reported that though both the guns were found to have been discharged recently, the empty cartridges that were seized from the spot did not match the rifle that was recovered. It was held that normally, if the eye witness’s evidence is absolutely acceptable, then such evidence could be accepted even if there is some contradiction between eye witnesses and the medical or ballistics reports. 19. Coming now to alternative argument of learned counsel for the accused-appellants, we find that incident in the present case had indeed taken place in the backdrop of the incident of morning. 19. Coming now to alternative argument of learned counsel for the accused-appellants, we find that incident in the present case had indeed taken place in the backdrop of the incident of morning. When both the parties crossed the path of each other in the evening, sudden fight took place between them and accused Beant Singh in the heat of passion, opened fire at spur of moment, which hit the deceased and then he though opened second fire but at the same time, he opened only single fire at Beant Singh and did not repeat that fire and his another fire hit Ranjeet Singh at the back of his right hand forearm. 20. In view of above discussion, we are persuaded to allow the appeal qua Accused-Appellant No. 2 and 3 namely Kartar Singh and Sukhwant Singh respectively by extending them benefit of doubt. They are acquitted of the charges under Sections 302/34, 324/34 and 323 IPC. They are on bail and need not surrender. Their bail bonds stand discharged. However, appeal qua Accused-Appellant No. 1, Beant Singh succeeds in part. His conviction for offence under Sections 302 and 323/34 IPC is set aside. He is instead convicted for offence under Section 304 Part I IPC and sentenced to rigorous imprisonment of seven years with fine of Rs. 25,000/- to be deposited by Accused-Appellant No. 1, Beant Singh within a period of two months, in default of payment of fine, he shall further undergo rigorous imprisonment for one year. Upon deposition of fine, as aforesaid, the same shall be disbursed to the parents/surviving parents of the deceased. Conviction and sentence of Accused-Appellant No. 1, Beant Singh for offence under Section 324 IPC is maintained. Both the sentence shall run concurrently. 21. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, Accused-Appellant no. 2 and 3, namely Kartar Singh and Sukhwant Singh respectively are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.