JUDGMENT : 1. Heard Sri Sunil Kumar, learned counsel for the appellant and Sri N.K. Srivastava, learned A.G.A. for the State. 2. This appeal challenges the judgment and order dated 18.9.2015 passed by the Additional Sessions Judge, Banda in Sessions Trial Nos. 36 of 2011 & 37 of 2011 convicting & sentencing Munna Singh, appellant, for commission of offence under Sections 302 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') to undergo rigorous imprisonment for life with fine of Rs.20,000/-, in case of default of payment of fine, further to under go four month imprisonment. 3. Facts as culled out from the First Information Report, are that on 24.11.2010 at about 12.30 p.m., accused-respondent, Munna Singh came near the deceased, son of the complainant, who was sitting at (chabutra) and started quarreling with deceased and after some time, the accused took out his country made pistol (tamancha) and fired. Saida Parveen, daughter-in-law of complainant who was drawing water by hand pump had seen the incident. Md. Nafees Khan and his mother-in-law had also come at the spot on hearing the voice of gun shot and on hearing shouting of Saida Parveen that deceased-Momin was shot by Munna Singh. Munna Singh took out second country made pistol, threatened them and ran away from the place of incident. The son of complainant ran after the accused but due to fear returned back to the scene of incident. It was stated that he called for help but because of fear of Munna Singh, nobody came for rescue. 4. This F.I.R. culminated into recording of statements of the witnesses and charge-sheet was laid against the sole accused. The accused was alleged to have committed murder, hence, he was committed to the Court of Sessions. The accused being summoned, pleaded not guilty and wanted to be tried. 5. The prosecution examined 7 witnesses who are as follows: 1 Rashid Khan PW1 2 Saida Parveen (Eye-witness) PW2 3 Pranav Kumar Rai PW3 4 Ramesh Kumar PW4 5 Daya Shankar Singh PW5 6 Sanjay Singh Yadav PW6 7 D.P. Singh PW7 6. In support of ocular version following documents were filed: 1 First Information Report Ex.Ka.3 & Ex. Ka.11 2 Written Report Ex.Ka.1 3 Recovery Memo of blood-stained & plain soil Ex. Ka. 18 4 Recovery Memo of Tamancha Ex. Ka. 7 5 Postmortem Report Ex.Ka.2 6 Panchayatnama Ex.Ka.12 7 Charge-sheet Ex. Ka.8 & Ex. In support of ocular version following documents were filed: 1 First Information Report Ex.Ka.3 & Ex. Ka.11 2 Written Report Ex.Ka.1 3 Recovery Memo of blood-stained & plain soil Ex. Ka. 18 4 Recovery Memo of Tamancha Ex. Ka. 7 5 Postmortem Report Ex.Ka.2 6 Panchayatnama Ex.Ka.12 7 Charge-sheet Ex. Ka.8 & Ex. Ka. 10 7. On the witnesses being examined and the prosecution having concluded its evidence, the accused was put to questions under Section 313 Cr.P.C. The accused-respondent also examined Chandra Prakash alias Changu as D.W.1. He has taken defence that as he is the only person belonging and professing the different religion, all the witnesses and complainant have colluded with each other to see that he is convicted so that he may vacate the said area. 8. Submission of Sri Sunil Kumar, learned counsel for the appellant, hinges on the following decisions and learned counsel for the appellant has placed reliance on Mahavir Singh Vs. State of Madhya Pradesh, (2016) 10 SCC 220 , Brijpal Singh Vs. State of M.P., 2004 SCC (Cri) 90, Shanker Vs. State of Madhya Pradesh, (2018) 15 SCC 725 , Rajesh Alias Sarkari and Another Vs. State of Haryana, (2021) 1 SCC 118 , Alim Ullah Vs. State, 2003 (46) ACC 1151 and submitted that this is a case of total improbability as medical evidence is contrary to the deposition of P.W.2, the so called eyewitness, who was not an eye-witness but posed as such and even if she was eye-witness, the genesis of offence as narrated by P.W.1 are contradictory to that narrated by P.W.2. 9. It is submitted by learned counsel for the appellant that the accused who is in jail since 2011 requires to be granted benefit of doubt on the basis of aforesaid judgments and on the basis of gun shot injury which was mentioned to be fired from a very close range but evidence discloses something else. It is submitted that no empty cartridge was found from the place of occurrence. Learned counsel for the appellant has submitted that there was no blackening or charring and has raised the issue of F.I.R. being ante timed. He has tried to demonstrate that the postmortem and time of F.I.R. do not match with each other. 10. The submission of learned A.G.A. is that absence of blackening is not a ground to grant the accused benefit of doubt. He has tried to demonstrate that the postmortem and time of F.I.R. do not match with each other. 10. The submission of learned A.G.A. is that absence of blackening is not a ground to grant the accused benefit of doubt. Learned A.G.A. has further submitted that blackening would be only if the shot was made at from very very close range and with full of vigour. It is further submitted by learned A.G.A. that there is no reason to disbelieve the prosecution witness nos. 1 & 2 who are though related to accused but are not interested witnesses. In support of his arguments, learned A.G.A. has relied on the decision in Guru Dutt Pathak Vs. State of Uttar Pradesh, LAWS (SC) 2021 5 5 to contend that this is not a case where conviction requires to be upturned. 11. Learned A.G.A. has relied on the finding of facts which are elaborately discussed by learned Sessions Judge which according to him cannot be easily interfered with. 12. Before we threadbare discuss the evidence and decide the case, two facts required to be undertaken. One, the decision of the Apex Court in Guru Dutt Pathak Vs. State of Uttar Pradesh, LAWS (SC) 2021 5 5., pressed into service by the learned A.G.A. and the judgment of the Apex Court in State of Gujarat Vs. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 736 wherein the Apex Court has held that if the first Trial Court is reversing the judgment of conviction, each and every evidence and the finding of the Sessions Judge should be met with. 13. Depositions of P.W.1, P.W.2 & P.W.3 go to show that pistol (tamancha) which was said to have been fired has not been recovered from the accused but was found from open place, and no empty cartridges were found at place of occurrence. Deposition of P.W.2 also goes to show that her presence is doubtful. The decision of the Court below also goes on this premise and has placed heavy reliance on ocular version of P.W.1, though he is not an eye-witness but he was conveyed by his son's wife that Munna Singh had fired at Momin. Deposition of P.W.2 also goes to show that her presence is doubtful. The decision of the Court below also goes on this premise and has placed heavy reliance on ocular version of P.W.1, though he is not an eye-witness but he was conveyed by his son's wife that Munna Singh had fired at Momin. There are certain facts which have come on record which have not been considered by the learned Trial Court which goes to show that statement of accused under Section 313 Cr.P.C. is a plausible statement that he is only person professing other religion and, therefore, he has been time and again tried to be made accused. There are lot of contradictions in the testimony of P.W.1. At one stage, he has stated that Nafees has shouted and, in his chief, he has stated that Nafees, Momin and other persons were crying. In the cross examination he has accepted that Nafees was driver of Ambulance and Momin was staying with him. There is question put that Momin had illicit relation with Saida Parveen. 14. Even if we believe the statements put forward by P.W.1 in his cross examination that Munna Singh had asked the deceased not to hear music on the mobile but Momin used to abuse him, the evidence of P.W.2 is also full of contradictions. The evidence of doctor who had been examined as P.W.3 goes to show that the version of P.W.1 & P.W.2 is absolutely concocted, the manner in which he has depicted the firing. In his testimony, the doctor has stated as under : ^^;fn e`rd cSBh gkyr es gks vkSj Qk;j djus okyk [kM+h gkyr es gks rks e`rd dk ,slh pksV vkuk laHko ugh gSA fdl izdkj ds vxzs;L=s dk iz;ksx fd;k x;k o dSls ekjk x;k ;g 'kL= fo'ks"kK gh crk ldrk gSA^^ 15. The findings of facts are also not consistent with medical evidence and the Postmortem report. In fact learned counsel for the appellant had even made alternative prayer that if this Court believes version of P.W.1 and P.W.2, then also there are altercation only and there are several discrepancies in the statement of P.W.1 and P.W.2 and the judgment of convicting the accused under Section 302 of I.P.C. is bad in eye of law. In fact learned counsel for the appellant had even made alternative prayer that if this Court believes version of P.W.1 and P.W.2, then also there are altercation only and there are several discrepancies in the statement of P.W.1 and P.W.2 and the judgment of convicting the accused under Section 302 of I.P.C. is bad in eye of law. At the most if this Court does not deem it fit granting benefit/Acquittal, it is a case of Section 304 part II of I.P.C. 16. While going through the record it is clear that learned judge has committed grave error in not examining the evidence from the angle that all the witnesses of fact opined that accused had fired from one ft. whereas as per the Medical evidence it was made from more than 8 to 10 ft. This fact goes in favour of the accused as it looks there was no eye-witness. Thus, it transpires that P.W.1 & P.W.2 were not eyewitnesses. The accused has already pleaded in his statement under Section 313 Cr.P.C. which was also not considered by the Court below. The recovery of the Tamancha was from an open place and, therefore, provision of Section 27 of the Evidence Act could not have been applied by the Trial Court against the accused which was found from an open place near Ken River. The factum of this recovery was not proved by the witnesses of fact. The police official accepted fact that in the cross examination that time of recovery is not mentioned. 17. Witnesses who have been examined are interested and partisan witnesses. If the incident had occurred at the place which is narrated which is an open place, there would have been other witnesses of fact. The medical evidence vis-a-vis ocular version of witnesses, there are lot of contradictions and omissions. The judgments in Guru Dutt Pathak & Bhalchandra Laxmishankar Dave (Supra) have been properly scrutinized by us. The Rules for appreciating evidence go to show that there is discrepancy which is writ large on the record that gun shot could not have been in the manner in which P.W.1 and P.W.2 have narrated which is a major contradictions rather which goes to the root of the matter. The Rules for appreciating evidence go to show that there is discrepancy which is writ large on the record that gun shot could not have been in the manner in which P.W.1 and P.W.2 have narrated which is a major contradictions rather which goes to the root of the matter. Factum of animosity for the accused being sole person in that locality professing another religion therefore is sought to be roped in as per his version under Section 313 Cr.P.C. cannot be ruled out. 18. The decision in case of Rajesh (Supra) will apply in full force to the facts of this case, the reason being, the witnesses who were deposed are not only related witnesses but are interested witnesses. The removal of the deceased to the Hospital by them has also been in doubtful circumstances. The incident of firing and there is variation about the incident. The ballistic expert should have been examined in such matter. The recovery in the context of investigation was not found. When there is discrepancy in the reports which would result into fatality for the prosecution and the benefit of doubt should be given to the accused. The decision in Gurucharan Singh v. State of Punjab, AIR 1963 SC 340 has been reiterated in Rajesh (Supra). The medical evidence and the controversy would permit us to take a different view then that taken by the Court below as the Court below has overlooked this aspect. 19. Decision in Shanker (Supra) would go to show that before a conviction is awarded no room for suspect evidence of key prosecution witnesses should be there. In our case, the trial court has not sifted the evidence by quality of evidence. The appreciation of evidence, in the case in hand, also proves that there is material non corroboration. Genesis and genuineness of the F.I.R. is also absent. In our view, learned Sessions Judge did not deal with the case of the accused in gross with settled principle of law namely author of fatal firearm wound was not proved. The judgment in Ashoksinh Jayendrasinh v. State of Gujarat, (2019) 6 SCC 535 will also enure for the benefit of the accused. There are serious contradictions and these are reconciled by the reports. The judgment in Ashoksinh Jayendrasinh v. State of Gujarat, (2019) 6 SCC 535 will also enure for the benefit of the accused. There are serious contradictions and these are reconciled by the reports. The law laid down in Brijpal Singh (Supra) will come to the aid of the accused as it would not have safe to convict the accused on the basis of the oral testimony which is highly doubtful. 20. The appreciation of evidence as done by the High Court in the case of Bhalchandra Laxmishankar Dave (Supra) shall apply. The tests are applied and we have threadbare decided the matter and come to a definite conclusion that accused could not have been convicted on the basis of scanty evidence. Ground of the prosecution is that the witnesses did not come forward as they were scared of the accused, this would prove fatal to the prosecution as the entire area was of a particular community even though no independent witness was examined though the incident occurred in broad day light and in a open space. 21. Going from the postmortem report, we find that the wound on the body of the deceased does not have any blackening which would belies the theory put forward by P.W.1 & P.W.2. Rather the medical evidence is in favour of the accused that firearm injury is not from very close range but at least from 8-10 ft. The tenor of injury in the postmortem report will also go to the aid of the accused. 22. In view of the above, benefit of doubt is given to the accused. Judgment and order passed by the learned Sessions Judge is set aside. This appeal is allowed. Let the accused be released from jail forthwith, if not warranted in any other offence. 23. Record and proceedings be sent back to the Court below forthwith.