JUDGMENT Munishwar Nath Bhandari, J. - By this appeal, a challenge is made to the order dated 18th December, 2013, passed by the Additional Sessions Judge No.1, Kishangarhbas, District Al war in Session Case No.58/2011. The accused-appellant was convicted for offences under Sections 336, 307 and 302 IPC and sentenced as under: For offence under Section 336 IPC ' Three months' simple imprisonment. For offence under Section 307 IPC ' Ten years' simple imprisonment with fine of Rs. 2,000/-, in case of default to pay fine, to further undergo three months simple imprisonment. For offence under Section 302 IPC ' Life imprisonment with fine of Rs. 5,000/-, in case of default to pay fine, to further undergo six months simple imprisonment. Brief Facts Of The Case: 2. An FIR No.130/2011, Exhibit-P3, was registered by the Police Station Kotkasim, District Alwar on a written report by complainant-Uttamchand. It was alleged that houses of accused-Ravindra Kumar Mathur and the complainant are situated at Mohalla Kanugoyan Kotkasim. On 23rd July, 2011 at around 7.00 PM, obscene act was done by Ravindra Kumar, Amit @ Kali, Chhotu, Hazari Lal Saini. When they were asked to stop it by the mother of complainant, they gave ill-treatment to her with a threat. 3. On 24th July, 2011 at 8.00 AM, when mother (Shakuntala) went on the roof to dry the clothes, accused-Ravindra along with Amit @ Kali, Chhotu, Hazari Lal Saini was on his roof with a gun and opened fire. After hearing noise, Yogesh went on the roof and found Shakuntala in pool of blood. When Yogesh tried to lift his mother, a fire was opened on him also. He died thereafter. 4. After registration of the FIR, the investigation was caused by the police. After the charge sheet, the cognisance of the offences was taken. Since offences were exclusively triable by the Court of Sessions, the case was committed to it. 5. The trial court framed the charges against accused-appellant for offences under Sections 509, 504, 336, 307, 302 IPC and under Section 6/28 of the Arms Act. The charges were explained to the accused-appellant. When it was denied, trial commenced. 6. The prosecution produced eighteen witnesses and thirty five documents to support its case. The statement of the accused was recorded under Section 313 Cr.P.C., 1973 He produced two documents in defence. The charges were explained to the accused-appellant. When it was denied, trial commenced. 6. The prosecution produced eighteen witnesses and thirty five documents to support its case. The statement of the accused was recorded under Section 313 Cr.P.C., 1973 He produced two documents in defence. The trial court, after marshaling the evidence, convicted the accused-appellant-Ravindra Kumar for the offences under Sections 336, 307 and 302 IPC while acquitting co-accused-Amit @ Kali. Arguments Of The Accused-Appellant: 7. Learned counsel submits that appellant has been falsely implicated in the case due to previous rivalry. It was on account of a litigation initiated by the appellant on allotment of land to the deceased and his father. The land was allotted in the belt of river. Due to the aforesaid litigation, the appellant was falsely implicated in this case. 8. It is also stated that other than injured witness-Shakuntala (PW3), nobody has seen the occurrence though the prosecution planted PW17-Rudra as an eye-witness. The injured witness (PW3- Shakuntala) was interested witness, thus her testimony should not have been relied. It is more so when the occurrence of 23rd July, 2011 was not believed by the trial court. 9. The statement of PW17-Rudra was not recorded during the course of investigation. He was produced in the court itself. He said to have received gun shot injuries but it was not disclosed to any one immediately after the occurrence, rather, he admitted that those injuries were reported after few days. 10. A reference of medical report of PW17-Rudra, Exhibit-P35, has also been given to show that no X-ray report was sought. The medical report to show injury from firearm was given without X( 4 of 12) [CRLA-109/2014] ray report. The statement of PW17-Rudra should not have been believed by the trial court. Other than PW3-Shakuntala and PW17- Rudra, nobody was witness to the occurrence. 11. It is also stated that as per statement of PW3-Shakuntala, she went on the roof to dry the clothes and thereafter, sat there for bathing. The statement aforesaid is not corroborated by any one. All the witnesses have stated that Shakuntala went on the roof to dry the clothes and not for bathing. In fact, Shakuntala took bath and, thereupon, went on the roof to dry the clothes. The contradictions in the statements have also been ignored by the trial court. 12. The statement aforesaid is not corroborated by any one. All the witnesses have stated that Shakuntala went on the roof to dry the clothes and not for bathing. In fact, Shakuntala took bath and, thereupon, went on the roof to dry the clothes. The contradictions in the statements have also been ignored by the trial court. 12. Learned counsel for appellant has further submitted that type of injuries received by the deceased and the injured could not have been out of the firearm at a distance of 39 feet or more. The type of injuries sustained by the injured and the deceased could have been, if fire would have been opened from a distance of 2 to 3 feet. 13. PW8-Dr. Shreeram Khandwasara has stated that injuries sustained by the injured and the deceased can be out of firearm from a distance of 20-30 feet but admitted that as per Modi's Medical Jurisprudence, the blacking spot cannot occur if fire is opened from a distance of 20 to 30 feet. The aforesaid aspect has also been ignored by the trial court. 14. It is also submitted that no empty cartridges were recovered so as to prove opening of fire from the gun recovered on the disclosure of accused-appellant under section 27 of the Indian Evidence Act. 15. It is stated that pellets recovered from the body of deceased were not out of firearm recovered from the appellant. The pellets, so recovered, were not sent to the Forensic Science Laboratory ('FSL') and otherwise, report was not proved by producing the ballistic experts. In view of the above, the trial court has wrongly concluded that opening of fire was from the gun so recovered on the disclosure of appellant under section 27 of the Indian Evidence Act. 16. PW6-Siddhant Ratan Chaturvedi has stated that accused-Ravindra Kumar used to fire in the air. In view of the above, the prosecution could not prove that arms recovered on the disclosure of the appellant were used for causing firearm injuries to the deceased as well as the injured. A prayer is, accordingly, made to set aside the order of the trial court and acquit the accused appellant of all the offences. It is moreso when the trial court has not accepted the statements of the witnesses produced by the prosecution in regard to previous incidence said to have been taken place on 23rd July, 2011. A prayer is, accordingly, made to set aside the order of the trial court and acquit the accused appellant of all the offences. It is moreso when the trial court has not accepted the statements of the witnesses produced by the prosecution in regard to previous incidence said to have been taken place on 23rd July, 2011. 17. Learned counsel for appellant has referred the judgment of the Apex Court in the case of Jagjit Singh alias Jagga vs. State of Punjab, reported in AIR 2005 Supreme Court 913 apart from judgments of the Division Bench of this court in the case of Beant Singh & ors. v. State of Rajasthan, D.B. Criminal Appeal No.499/1991, decided on 18.05.2018 and in Sultan Singh v. State of Rajasthan, D.B. Criminal Appeal No.1161/2003, decided on July 11, 2007. The judgments aforesaid are to show that even in case of use of firearm, the accused have been acquitted and in other case, accused was convicted for offence under Section 304 Part-I IPC instead of 302 IPC. Arguments Of The Side Opposite: 18. Learned Public Prosecutor and the counsel for complainant have opposed the arguments raised by learned counsel for accused-appellants. It is submitted that prosecution could prove its case beyond doubt, thus there exists no question of false implication of the accused-appellant. 19. The allegation of false implication is, otherwise, not made out even if reference of litigation said to have been initiated by the appellant is also taken into consideration. The said litigation was initiated in the year 2007, whereas, the present occurrence is of the year 2011. In view of the above, the allegation of false implication of the appellant is not made out. 20. Coming to the facts of the case, it is stated that occurrence has been proved by PW3-Shakuntala and PW17-Rudra. Their statements have been corroborated by other witnesses. It is stated that accused-appellant was standing on his roof with a firearm when they reached to the roof after the occurrence. No cross-examination in that regard has been raised to those witnesses. Apart from eye-witnesses to the occurrence, the prosecution produced other witnesses, who had seen the accused appellant along with firearm. The firearm injuries were caused to PW3-Shakuntala and PW17-Rudra apart from the deceased. 21. It is also stated that there was no reason for the prosecution to implicate the accused-appellant after leaving real culprit. Apart from eye-witnesses to the occurrence, the prosecution produced other witnesses, who had seen the accused appellant along with firearm. The firearm injuries were caused to PW3-Shakuntala and PW17-Rudra apart from the deceased. 21. It is also stated that there was no reason for the prosecution to implicate the accused-appellant after leaving real culprit. The litigation, if any, cannot be taken to the extent of false implication of the appellant after leaving the real culprit. 22. A reference of other evidence led by the prosecution to corroborate the statements of eye-witnesses and other witnesses has been given. It is not only that recovery of the arms on the disclosure of the appellant but recovery of the pellets from the body of the injured as well as the deceased. It was sealed and recovery memo, Exhibit-P17, was prepared. The pellets as well as arms were sent to the FSL and for that, FSL report, Exhibit-P29, has proved not only that firearm recovered from the appellant was serviceable but has been fired. It also confirms that pellets recovered from the body of the deceased as well as the injured were out of firearm (gun) recovered from the appellant. 23. It is also submitted that gun recovered from the accused was a licenced arm and was produced in evidence. The appellant in his statement under Section 313 Cr.P.C., 1973 did not state about air fire so as to question its duration, thereby, not only Section 8 but even section 106 of the Indian Evidence Act comes in picture. 24. Learned Public Prosecutor and the counsel for complainant have made reference of other evidence also to show that prosecution could prove its case beyond doubt. In view of the above, a prayer is made to dismiss the appeal. Those arguments would be considered by this court while dealing with the arguments of learned counsel for appellant. Finding Of The Court: 25. We have considered rival submissions of learned counsel for the parties and scanned the record carefully. 26. An FIR No.130/2011, Exhibit-P3, was registered on a written report by the complainant. The prosecution produced PW3- Shakuntala, who sustained injuries in the occurrence. It is stated that on 24th July, 2011, when she went on the roof, found Ravindra Kumar Mathur along with others standing on their roof. The accused-Ravindra Kumar opened fire on her. The deceased Yogesh came immediately thereupon. The prosecution produced PW3- Shakuntala, who sustained injuries in the occurrence. It is stated that on 24th July, 2011, when she went on the roof, found Ravindra Kumar Mathur along with others standing on their roof. The accused-Ravindra Kumar opened fire on her. The deceased Yogesh came immediately thereupon. The fire was opened on him also. 27. PW-3 Shakuntala has stated that she went on the roof to dry the clothes and thereupon, sat for bathing. The occurrence took place at that time. Learned counsel for appellant submitted that her statement is not corroborated by other witnesses and otherwise, there is improvement in the statement. The statement aforesaid has been made to show conduct of the appellant. He said to have used filthy language and did obscene acts. When Shakuntala asked them to stop it, the accused opened fire. The aforesaid story was not given during the course of investigation, thus there exists improvement. 28. We have gone through the statements of other witnesses apart from the statement of PW3-Shakuntala and find that PW4- Saroj Sharma, PW5-Ramesh Chand, PW17-Rudra and PW1- Uttamchand have stated one and the same story. The occurrence took place when Shakuntala went on the roof to dry the clothes. To that extent, there exists no contradiction in the statements of witnesses and opening of fire at that time. 29. In view of the aforesaid, we find that it is not only that PW3- Shakuntala but even PWl-Uttamchand, PW2-Satyanarain, PW4- Saroj Sharma, PW5-Ramesh Chand and PW17-Rudra have given corroborative statements about incidence which took place when Shakuntala went on the roof to dry the clothes. The accused along with others were standing on the roof and opened fire. After hearing noise of fire, Yogesh came on the roof and tried to lift mother Shakuntala. He was also subjected to firearm injuries by the appellant. At that stage, learned counsel for appellant made reference of the statement of PW3-Shakuntala to show that fire on her as well as Yogesh was opened by accused-appellant at one and same time. 30. We have gone through the statement of PW3 and find that fire is said to have been out of one and same occurrence, however, learned counsel for appellant has taken a different interpretation of the said statement, thus cannot be accepted. 30. We have gone through the statement of PW3 and find that fire is said to have been out of one and same occurrence, however, learned counsel for appellant has taken a different interpretation of the said statement, thus cannot be accepted. In view of the above, it is not only that eye-witnesses have been produced by the prosecution and proved the occurrence but other witnesses have also shown presence of accused on the roof with a gun when they reached on the roof after hearing a noise of fire. 31. The statements of the injured and the eye-witnesses have further been corroborated by other evidence. The police had recovered firearm on the disclosure of appellant under section 27 of the Indian Evidence Act. It is Exhibit-P22 and Exhibit-P23. The recovery memo for it is Exhibit-P24. Exhibit-P25 is a site map of recovery of gun. The firearm so recovered on the disclosure of appellant was licensed arms and license has been produced by the prosecution vide Exhibit-P30 and its renewal vide Exhibit-P31. 32. The firearm so recovered at the instance of appellant and the pellets from the person of the deceased and the injured were sent to the FSL. The FSL report is Exhibit-P29. It confirms that seven irregular lead shots were recovered from the person of the deceased and sealed in the bottle vide Exhibit-P17. Six irregular shots recovered from the body of the injured were examined in the FSL and opinion therein that firearms were serviceable and fired though duration of fire has not been given. The FSL report further shows that irregular lead shots recovered from the person of the deceased and the injured have been fired from the firearm. The aforesaid has corroborated the evidence brought by the prosecution. 33. It is even supported by the post-mortem report, Exhibit-P13. To prove it, Dr. Shreeram Khadwasra (PW8) was examined by the prosecution. He has given description of several injuries sustained by the injured and the deceased. The said witness has made statement that injuries can be received on a fire with a distance of 20-30 ft. or more. In the cross-examination, he has no doubt admitted that as per Modi's Medical Jurisprudence, blacking spot comes when fire is opened from a distance of 2-3 feet. 34. The said witness has made statement that injuries can be received on a fire with a distance of 20-30 ft. or more. In the cross-examination, he has no doubt admitted that as per Modi's Medical Jurisprudence, blacking spot comes when fire is opened from a distance of 2-3 feet. 34. In view of the above, we are unable to accept the argument of learned counsel for appellant that blacking spots found on the person of the deceased or in the medical report of injured, Exhibit- P33, could not have been sustained on a fire from a distance of 30 feet. The evidence available on record shows that height of the roof of the appellant's house is around 16 feet, whereas, height of complainant's roof was only 11 feet, thus fire was going down with additional speed. It may result in blacking spots to the injured and the deceased. 35. The recovery of articles on the disclosure of appellant was kept in the 'Malkhana Registers' and produced by the prosecution vide Exhibit-P15A and Exhibit-P16A. 36. PW13-Ramni was has also proved the prosecution case. It is not only for the recovery of articles which includes firearm but FSL report. The witnesses to the recovery memo were also produced by the prosecution. They have proved recovery not only of the arms but pellets from the person of the deceased and the injured. 37. In view of the above, it cannot be said that if duration of fire has not been given in the FSL report, trial court should not have accepted the prosecution case. We find that firearm recovered on the disclosure of the accused-appellant was licenced arm and in his statement under Section 313 Cr.P.C., 1973 no reference to the fire has been given though in the FSL report, it has come that arms was used for fire. 38. It is true that burden lies on the prosecution to prove the case but sections 8 and 106 of the Indian Evidence Act come in picture when arms has been recovered on the disclosure of appellant with an opinion that firearms were serviceable and fired. The arms were belonging to the appellant and has not been disputed, thus conduct of the appellant has also to be seen as it is relevant pursuant to section 8 of the Indian Evidence Act. The arms were belonging to the appellant and has not been disputed, thus conduct of the appellant has also to be seen as it is relevant pursuant to section 8 of the Indian Evidence Act. Learned counsel has come with a case that accused made statement under Section 313 Cr.P.C., 1973 that he opened fire in air. No such version has been made by him so as to support PW6 for the aforesaid. 39. In view of the above, we do not find any substance in any of the arguments raised by learned counsel for appellant. We find that prosecution could prove its case beyond doubt, thus the trial court has rightly convicted the accused-appellant while acquitting other co-accused. The prosecution case cannot be disbelieved only for the reason that incidence of 23rd July, 2011 has not been believed by the trial court. The finding of the trial court shows that incidence of 23rd July, 2011 could not be proved by the prosecution beyond doubt, thus benefit was given. Merely for the aforesaid reason, the evidence brought for incidence of 24th July, 2011 cannot be disbelieved when it is sufficient to prove the case beyond doubt. 40. Learned counsel for appellant has given reference of the judgment of the Division Bench in the case of Beant Singh & ors. (supra). We find that Division Bench of this court has acquitted the accused taking into consideration the facts of the aforesaid case. When the prosecution could not bring evidence to prove its case beyond doubt, the accused was acquitted. In the same manner, a reference of another judgment of the Division Bench of this court in the case of Sultan Singh (supra) has been given. The judgments of the Division Bench of this court were on facts of the case and not by propounding the ratio that in case of firearm, one should be acquitted or should be brought under Section 304 Part-I IPC. 41. So far as judgment of the Apex Court in the Jagjit Singh alias Jagga (supra) is concerned, again finding has been recorded after considering the evidence led therein. Therein, the complainant could not prove her case. She was resident of other village, thus conclusions were drawn based on facts available on record. 41. So far as judgment of the Apex Court in the Jagjit Singh alias Jagga (supra) is concerned, again finding has been recorded after considering the evidence led therein. Therein, the complainant could not prove her case. She was resident of other village, thus conclusions were drawn based on facts available on record. The other issue taken up by the Apex Court was even of unexplained delay of three days in recording of the statement of the prosecutrix. 42. In view of the above, we do not find that any of the judgments cited by learned counsel for appellant supports his argument, rather, those judgments were given on the facts of those cases. 43. Accordingly, appeal fails and is hereby dismissed.