JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. 1. For, abrasion having dimension of " x " on left little finger on the person of Vijay Singh (PW-1), which was a simple blunt injury and the abrasion having dimension of 0.5" x " at dorsal aspect of first metacarpal of semi finger of right hand on the person of Omprakash (PW-4) and the swelling having dimension of 3" X 2" on left side of chest on person of Omprakash (PW-4), which was caused by simple blunt weapon and the swelling of right ankle joint and bruise reddish blue in colour on left lumber region on the person of Dinesh, (not examined), the present appellant, namely Abhay Singh for commission of offence punishable under Section 307 of the Indian Penal Code has been convicted by the Court of Additional Sessions Judge, Khetri District Jhunjhunu (Rajasthan). The appellant has also been convicted for offences punishable under Sections 323 and 504 of the Indian Penal Code and under Section 3/25 of the Arms Act. 2. The ld. trial Judge, having convicted the present appellant for the above said offences, vide a separate order of even date, sentenced the appellant as under :- "For offence under section 307 I.P.C. the appellant was sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo one year simple imprisonment. For offence under section 323 I.P.C. the appellant was sentenced to undergo six months rigorous imprisonment. For offence under section 504 I.P.C. the appellant was sentenced to undergo one year rigorous imprisonment For offence under section 3/25 of the Arms Act, the appellant was sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 2000/- and in default of payment of fine to further undergo six months additional simple imprisonment. All the sentences were ordered to run concurrently." 3. In the present case, all the injuries were on the non-vital parts of the body of the three injured, except a solitary injury, which was swelling on the chest of Omprakash (PW-4). All the injuries were declared simple blunt in nature. 4. Curiously enough, as per prosecution witnesses, none of the above injuries were caused by the present appellant. The injuries were caused by co-accused i.e. eight or ten persons, who have been sent for the trial. All the injuries were declared simple blunt in nature. 4. Curiously enough, as per prosecution witnesses, none of the above injuries were caused by the present appellant. The injuries were caused by co-accused i.e. eight or ten persons, who have been sent for the trial. The present appellant, primarily, has been sentenced on the ground that he had fired a shot from the country-made-pistol. The said shot had hit Omprakash (PW-4) at whom it was purportedly aimed. The shot had allegedly hit the wall. 5. It is further story of the prosecution that even though, the present appellant had eight or ten persons on his side, who came to rescue the appellant, yet the complainant and his witnesses over powered the accused-appellant, made him fall on the ground and had snatched country-made-pistol. 6. It is further case of the prosecution that the complainant and his witnesses had produced country-made-pistol, along with the empty cartridge at the Police Station. The Investigating Officer, who had prepared the site-plan, has been examined. 7. In the context of above, this Court has to examine the prosecution case in the instant appeal. 8. Omprakash (PW-4) presented a written-report (Exhibit-P/1) before the Investigating Officer (not examined), as it is a case of the prosecution that the Investigating Officer died, during the course of the trial. 9. The written-report (Exhibit-P/1), on the basis of which a formal First Information Report (Exhibit-P/2) bearing No. 162/2007 dated 01.08.2007 was registered at Police Station Singhana, for offences punishable under Sections 147, 341, 323 and 307 I.P.C. and under Section 3/25 of the Arms Act, when translated into English reads as under :- "To, The Station House Officer Saheb, Police Station Singhana Subject : Lodging of the report. Sir, It is submitted that today i.e. on 01.08.2007 at around 03:00 P.M. Abhay Singh son of Rohtas Yadav, resident of Chitausa at the chowk of my house was sitting, along with me and Dinesh for settling the accounts. Meanwhile, the Police came and Abhay Singh ran away. The Police, after search had returned. After about one hour, Abhay Singh in front of my house starting giving abuses. He called me by a bad name and said that you have called the Police and with an intention to commit murder, he fired a shot from the country-made-pistol. Meanwhile, the Police came and Abhay Singh ran away. The Police, after search had returned. After about one hour, Abhay Singh in front of my house starting giving abuses. He called me by a bad name and said that you have called the Police and with an intention to commit murder, he fired a shot from the country-made-pistol. The said shot hit Kotri (hut) then Dinesh son of Harisingh Jat, resident of Bishanpura took Abhay Singh into his grips. Vijay Singh son of Chheluram Jat, resident of Nalpur snatched country-made-pistol from his hand. Meanwhile, Prakash son of Hanumana Ram Yadav, Sunil @ Gogar Meghwal, other ladies and persons about ten-fifteen in number came from Village Chitausa armed with dandas. They have given beating to me, Vijay Singh and Dinesh. They took away Abhay Singh from our custody. Due to beating given, I have suffered injuries on my right hand thumb and left side of rib. Vijay Singh suffered injury on the left hand finger. Dinesh suffered injury on the right foot ankle. I am presenting country-made-pistol, which was snatched from Abhay Singh, along with the packet of empty cartridge. The action be taken. Signed Omprakash son of Arjun Ram Jat Dated 01.08.2007 Vishanpura" From perusal of the above said written-report (Exhibit-P/1), following facts are discernible :- A. That Abhay Singh had come at the spot, fired a shot and same had hit kotri (hut). B. That Abhay Singh was encircled by the complainant-party. After he was taken into grip, he was made to fall on the ground and country-made-pistol was snatched. C. That the persons, which included Prakash, Sunil @ Gogar Meghwal, ladies and other persons, who were ten-fifteen in number, came to rescue the accused-appellant. D. That they took away Abhay Singh from the grip of the witnesses but from the witnesses i.e. three injured, co-accused supporters of present appellant had taken away the country-made-pistol and packet of empty cartridge." 10. Now this Court shall take note of the medical evidence. Dr. Rajkumar Dangi (PW-3), being Medical Officer at Primary Health Centre, Singhana, on 02.08.2007 had examined injured - Omprakash (PW-4) vide Injury Report (Exhibit-P/5). In the Injury Report (Exhibit-P/5), following injuries have been noted on the person of Omprakash (PW-4):- "1. Abrasion red in colour- 0.5 x cm at dorsal aspect of 1st metacarpal (right). Simple - blunt 2. Dr. Rajkumar Dangi (PW-3), being Medical Officer at Primary Health Centre, Singhana, on 02.08.2007 had examined injured - Omprakash (PW-4) vide Injury Report (Exhibit-P/5). In the Injury Report (Exhibit-P/5), following injuries have been noted on the person of Omprakash (PW-4):- "1. Abrasion red in colour- 0.5 x cm at dorsal aspect of 1st metacarpal (right). Simple - blunt 2. Swelling - 3 x 2 cms - lower 1/3rd or at lt. side of chest. After x-ray blunt." On the very same day i.e. on 02.08.2007, Dr. Rajkumar Dangi (PW-3) at 09:05 A.M. examined injured - Vijay Singh (PW-1) vide Injury Report (Exhibit-P/7). In the Injury Report (Exhibit-P/7), following injuries have been noted :- "1. Abrasion red in colour x cm - ventral aspect of left little finger. Simple - blunt. No other external visible injury seen." Dr. Rajkumar Dangi (PW-3), on the very same day i.e. on 02.08.2007 at 09:00 A.M. examined injured - Dinesh and in the Injury Report (Exhibit-P/8) noted following injuries :- "1. Swelling - right ankle joint-lateral aspect. Simple blunt. 2. Bruise reddish blue in colour - 3 x 1 cm - left lumber region. Simple blunt." 11. As stated earlier, all the injuries were found simple in nature. In cross-examination, Dr. Rajkumar Dangi (PW-3) noted that the injuries noted vide Injury Reports, Exhibit-P/5, Exhibit-P/7 and Exhibit-P/8 respectively can be a result of fall. 12. Be that as it may, it is an admitted case of the prosecution in the written-report and in the Court statements that the accused-appellant has caused any injury, which have been noted in the Injury Reports, Exhibit-P/5, Exhibit-P/7 and Exhibit-P/8 respectively. 13. In the Court, the prosecution, in all, examined nine witnesses, namely Vijay Singh (PW-1), Matadeen (PW-2), Dr. Rajkumar Dangi (PW-3), Omprakash (PW-4), Munni Devi (PW-5), Umrav (PW-6), Kailash Chand Sharma (PW-7), Phoolchand (PW-8) and Mahesh Kumar Sharma (PW-9) respectively. 14. Injured-Vijay Singh appeared before the trial Court as PW- 1. He has reiterated the same version as to what was stated by Omprakash (PW-4), complainant in the written-report (Exhibit-P/1). He has further stated that Omprakash (PW-4) was saved as the shot fired hit the wall. This witness has proved site-plan (Exhibit-P/3), wherein at point 5, it is noted that the cement of the wall had fallen due to the hit caused by the shot fired. He has further stated that Omprakash (PW-4) was saved as the shot fired hit the wall. This witness has proved site-plan (Exhibit-P/3), wherein at point 5, it is noted that the cement of the wall had fallen due to the hit caused by the shot fired. No F.S.L. Expert has been examined to say that the cement had fallen because of the shot fired. In cross-examination, Vijay Singh (PW-1) stated as under :- ;g dguk xyr gS fd eSa ns'kh dV~Vk ls pyh xksyh dk [kks[kk ysdj uk vk;k gksm rFkk eSaus ns'kh dV~Vk uk Nhuk gksA Fkkus okyksa dks ns'kh dV~Vk vkSj [kks[kk ge nksuksa us iqfyl okyksa dks lqiqnZ fd;k FkkA dV~Vk vkSj [kks[kk xkao ls vkseizdk'k vius gkFk esa ysdj vk;k FkkA Matadeen (PW-2) was attracted at the spot after the shot was fired. He has also stated that the shot fired had hit the wall. This witness admitted that the country-made-pistol and the empty cartridge were handed over by the complainant party to the Police. To the similar effect is the testimony of Omprakash (PW-4), complainant. Munni Devi (PW-5), wife of Omprakash (PW-4) has stated in the Court that Abhay Singh gave abuses, fired shot and then later they grappled. She has stated that her husband Omprakash (PW-4) had received any injury. Umarav (PW-6) has turned hostile to the prosecution. Kailash Chand Sharma (PW-7) was examined to prove the link evidence as he was Head Moharar and In-charge of Malkhana. He had deposited the country-made-pistol and an empty cartridge in Malkhana vide Exhibit-P/10. Phool Chand (PW-8), being an armor, examined country made-pistol and held the same to be in order. Mahesh Kumar Sharma (PW-9) has proved sanction granted by the District Magistrate to prosecute the present appellant for commission of offence punishable under Section 3/25 of the Arms Act. 15. Before this Court deal with the arguments raised by the learned counsel appearing for the parties, it will be apposite to note here that Vijay Singh (PW-1) has stated in the Court that eight-ten persons from Village Chitausa of accused came and they had given pushes and fist blows. Furthermore, these eight-ten persons, who had caused simple blunt injuries, as per Vijay Singh (PW-1) were armed with any weapon. Though, it is stated in the written-report (Exhibit-P/1) that said ten-fifteen persons came armed with dandas. 16. Mr. Furthermore, these eight-ten persons, who had caused simple blunt injuries, as per Vijay Singh (PW-1) were armed with any weapon. Though, it is stated in the written-report (Exhibit-P/1) that said ten-fifteen persons came armed with dandas. 16. Mr. Jai Raj Tanita, the learned counsel appearing for the accused-appellant, has submitted that in the present case, the witnesses are trustworthy and they have suffered simple blunt injuries, which according to Vijay Singh (PW-1) were result of pushes and fist blows. Counsel has further submitted that Munni Devi (PW-5) wife of Omprakash (PW-4) has stated that the injuries were caused by the persons, who had arrived at the scene. Munni Devi (PW-5) has only stated that after the shot was fired, there was grappling. 17. In the context of the above, this Court has to access the testimony of the witnesses, whether they are truthful regarding firing of the shot. 18. Admittedly, the shot fired by the appellant had hit Omprakash (PW-4). It had hit the wall. No visual description from any F.S.L. Experts has been proved on record that the cement had fallen from the wall, as depicted at point 5 in the site-plan (Exhibit-P/3) due to hit caused by the shot fired. It is also improbable that ten-fifteen persons came to rescue the appellant and they had snatched the country-made-pistol from the witnesses. The nature and dimension of the injuries make the story regarding intention of the accused to commit offence of attempt to murder doubtful. If it is believed that to rescue the accused, who had fired a shot ten-fifteen persons came and later grappling at the spot had taken place, then persons to who came to rescue the accused would have caused serious injuries that too numerous in number. 19. Furthermore, the version of the prosecution that the accused left the country-made-pistol, along with empty cartridge in the hand of the complainant and his witnesses cannot be accepted at the face value, especially when the complainant and his witnesses were outnumbered by ten-fifteen persons, who came to the aid of the accused. It is an admitted case of the prosecution that the complainant, along with his witnesses had taken the country-made-pistol and empty cartridge to the Police Station. 20. It is an admitted case of the prosecution that the complainant, along with his witnesses had taken the country-made-pistol and empty cartridge to the Police Station. 20. Thus, the submission made by the learned counsel appearing for the accused-appellant that in view of the nature of the injuries prosecution exaggerated the version cannot be ignored, especially when the complainant and his witnesses purportedly took the country-made-pistol and empty cartridge, after firing a shot. The witnesses, who can go to the extent of naming two persons, namely Prakash s/o Hanumanaram and Sunil @ Gogar Meghwal, who have been sent for the trial and have left the window open for involvement of ten-fifteen persons, cannot be wholly believed, especially when three witnesses have suffered superficial simple blunt injuries. It is required to be highlighted that all the injuries, except one injury, which is a swelling on the chest are on the non-vital parts of the body. 21. Therefore, in the present case, the witnesses have exaggerated the prosecution version. Admittedly, no injury to the witnesses have been caused by the present appellant. Only role assigned to him is that he has fired a shot, which had missed target and had only resulted into falling of cement from the wall. No F.S.L. expert has been examined and there is no corroborative piece of evidence on the record that the falling of the plaster of cement from the wall was a result of firing of the shot. Thus, the complainant and his witnesses cannot be believed and trusted to sustain the conviction of the present appellant for commission of offence punishable under Section 307 of the Indian Penal Code. 22. This Court cannot become oblivious of the fact that the appellant has been sentenced to undergo five years rigorous imprisonment and no recovery of weapon has been affected from the appellant. It is only an oral assertion of the witnesses that the weapon produced by them was snatched from the accused. The witnesses, qua the narration of the alleged occurrence and the manners thereof have not been believed. Therefore, they cannot be believed that the accused was in possession of the weapon. Hence, the recovery is also held doubtful. 23. Taking totality of circumstances, the present appeal is accepted. The impugned judgment of conviction pronounced and the order awarding sentence upon the appellant is set aside and the appellant is acquitted of the charges. Therefore, they cannot be believed that the accused was in possession of the weapon. Hence, the recovery is also held doubtful. 23. Taking totality of circumstances, the present appeal is accepted. The impugned judgment of conviction pronounced and the order awarding sentence upon the appellant is set aside and the appellant is acquitted of the charges. 24. The appellant is stated to be in custody from last two years and four months, therefore, he be set at liberty forthwith, if not required in any other case. 25. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- [Rupees Twenty Thousand Only] and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effective for a period of six-months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Apex Court.