JUDGMENT : MEHTA, J. 1. The appellants herein have been convicted and sentenced as below vide judgment dated 11.07.2013 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar in Sessions Case No.95/2012:- Appellant :- Shankar Lal Offence under Section Sentences Fine Sentence in lieu of default of payment of fine 302 IPC Life Imprisonment Rs.2,000/- 6 Months’ Additional S.I. 341 IPC 1 Month’s SI - - 3/25(1-B)(A) Arms Act 1 Year’s RI Rs.1,000/- 3 Months’ Additional SI 27 Arms Act 3 Years’ RI Rs.2,000/- 6 Months’ Additional SI Appellants :- Mahender Pal and Hanuman Prasad Offence under Section Sentences Fine Sentence in lieu of default of payment of fine 302/34 IPC Life Imprisonment Rs.2,000/- 6 Months’ Additional SI 341 IPC 1 Month’s SI - - 2. They have preferred the instant appeal under Section 374 (2) Cr.P.C. for assailing the impugned judgment of conviction and order of sentences passed against them by the trial court. 3. Briefly stated facts relevant and essential for disposal of the instant appeal are noted hereinbelow:- 4. PW.15 Shri Ramswaroop lodged a typed report (Ex.P/41) at the Police Station Padampur on 03.09.2012 at about 10:30 PM alleging inter alia that ten days ago, a quarrel had taken place between Mahender S/o Shri Brijlal Tarad, resident of Balrajpura on one side and Shailendra and Sunil, sons of Sultan Ram, Sandeep son of the complainant owing to the issue of giving side to a motorcycle. Slaps and fist blows had been exchanged between the parties in this process. Bearing the said enmity in mind, on 03.09.2012 at about 6 O’ Clock in the evening, the accused party comprising of Mahender Tarad and Shankar Tarad, sons of Kashi Ram Jat came to the bus stand nearby their house and hurled abuses that the members of the complainant party would have to be taught a lesson. The complainant, his brother Sultan Ram, his son Sandeep and nephews Shailendra and Sunil Kumar all proceeded to the bus stand and requested the accused to refrain from using profane language on which, a fight broke out between the two parties. The complainant and his brother Sultan Ram intervened and pacified the quarreling parties. Mahender Pal and Shankar lal left the spot threatening that they were coming back and the complainant party should wait for the consequences. The complainant and his brother Sultan Ram intervened and pacified the quarreling parties. Mahender Pal and Shankar lal left the spot threatening that they were coming back and the complainant party should wait for the consequences. At about 7:15, Mahender and Hanuman, sons of Brij Lal, Shankar and Rameshwar Lal, sons of Kashiram, Mohanlal son of Dayalram, and Arjun Jat came around in a white jeep. The accused Shankar Lal was carrying a pistol and others were armed with lathis and swords. The complainant and his family members were sitting on a platform outside their house near the bus stand. The accused made exhortations and started beating Shailendra, son of Shri Sultan Ram, complainant’s nephew. Shailendra started running towards his house on which, the accused Mahender Pal and Hanuman Prasad caught him and told Shankar Lal to fire the gunshot. Shankar Lal fired his weapon from close range and the resultant gunshot hit on the left side of Shailendra who fell down. 5. Thereafter, the accused started assaulting the complainant and Shailendra by lathis. In this melee, the complainant’s son Sandeep Kumar, nephew Sunil Kumar and brother Sultan Ram also received injuries. The assailants fled away in their jeep. The injured persons were boarded on to a jeep and were taken to the Government Hospital, Padampur where the doctor declared that Shailendra had expired. Sandeep Kumar and Sunil Kumar were admitted into the hospital. It was further alleged that the assailants hurled caste based abuses towards the complainant party and beat them. The complainant’s nephew Shailendra was shot at and was killed. 6. On the basis of this report, a formal FIR No.212/2012 (Ex.P/42) was registered and investigation was commenced. The Investigating Officer, conducted spot proceedings and recorded statements of witnesses. The dead body of Shailendra was subjected to autopsy at the Government Hospital, Padampur and the postmortem report (Ex.P/39) was procured. Usual recoveries were effected. Upon concluding investigation, the IO found that the accused Rameshwar Lal who was named in the FIR was not present at the spot and thus, he was not charge-sheeted. The accused Mohan Lal was a juvenile and thus, charge-sheet against him was filed in the Juvenile Justice Board concerned. Usual recoveries were effected. Upon concluding investigation, the IO found that the accused Rameshwar Lal who was named in the FIR was not present at the spot and thus, he was not charge-sheeted. The accused Mohan Lal was a juvenile and thus, charge-sheet against him was filed in the Juvenile Justice Board concerned. Charge-sheet was filed against the appellants herein and Arjun Ram for the offences punishable under Sections 147, 148, 341, 323, 326, 302/149 IPC and Sections 3(1)(x), 3(2)(v) of the SC/ST (Prevention of Atrocities) Act and as the offence under Section 3 of the SC/ST (Prevention of Atrocities) Act had been applied in the charge-sheet, the case was committed to the Court of Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar for trial where charges were framed against the accused appellants Mahender Pal, Hanuman Prasad and the co-accused Arjun Ram for the offences punishable under Sections 147, 148, 341, 302/149, 323, 323/149, 326, 326/149 IPC and Sections 3(1) (x) and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act whereas charges for the offences punishable under Sections 147, 148, 341, 302, 323, 326/149 IPC and Sections 27 & 3/25 (1-B) (A) of the Arms Act were framed against the accused appellant Shankar Lal. The accused pleaded not guilty and claimed trial. The prosecution examined 21 witnesses and exhibited 61 documents to prove its case. The accused were questioned under Section 313 Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution evidence which they denied and claimed to be innocent. However, no witness was examined in defence. After hearing the arguments advanced by the Public Prosecutor and the defence counsel and appreciating the evidence available on record, the trial court by judgment dated 11.07.2013 proceeded to convict and sentence the appellants as above whilst the accused Arjun Ram was acquitted by giving him the benefit of doubt. The instant appeal under Section 374 (2) Cr.P.C. has been preferred to assail the impugned judgment and order whereby, the trial court convicted and sentenced the accused appellants as above. 7. Shri Nishant Bora, learned counsel representing the appellants, vehement and fervently contended that the entire prosecution case is false and fabricated. The prosecution witnesses have suppressed the genesis of occurrence. 7. Shri Nishant Bora, learned counsel representing the appellants, vehement and fervently contended that the entire prosecution case is false and fabricated. The prosecution witnesses have suppressed the genesis of occurrence. The IO collected the call details and found that the accused Rameshwar Lal who was specifically named in the FIR as well as in the investigational statements of the witnesses was actually not present at the spot and had been falsely implicated by the complainant party and accordingly, he was not charge-sheeted. The prosecution made no effort whatsoever to file application under Section 319 Cr.P.C. to summon the exonerated accused Rameshwar Lal as an additional accused. The trial court, thoroughly appreciated the evidence available on record and acquitted the accused Arjun Ram of the charges on the same set of evidence which was relied upon to convict the accused appellants herein for the crime. He further submitted that the allegation levelled by the prosecution witnesses that the accused appellants Mahender Pal and Hanuman Prasad caught hold of the deceased Shailendra and while they were in this position, the accused Shankar Lal fired the gunshot at Shri Shailendra is totally unbelievable. He contended that Shankar Lal was allegedly armed with a country-made gun which releases pellets upon being fired. Thus, there is no possibility that the accused Mahender Pal and Haunman Prasad would take the risk of holding on to the victim while the accused Shankar Lal was intending to fire at him because in this process, they themselves would run an imminent risk of getting injured by the resultant gunshot. Shri Bora further submitted that in the FIR and the investigational statements, the complainant and the witnesses came out with a case that the gunshot was fired by the accused Shankar Lal at Shailendra while he was in the clutches of accused Mahender Pal and Hanuman Prasad but during the trial, while realizing that this allegation was bound to be disbelieved as being totally concocted and grossly unacceptable, the prosecution witnesses modulated their stance and alleged that though these two accused were holding the victim but Shankar Lal exhorted that the victim should be released and thereafter, he would fire. No sooner Shankar Lal stated so, the appellants Mahender Pal and Hanuman Prasad released Shailendra from their clutches and he started running away. No sooner Shankar Lal stated so, the appellants Mahender Pal and Hanuman Prasad released Shailendra from their clutches and he started running away. From a distance of about 8-10 feet, Shankar Lal fired his country-made pistol which hit Shailendra on the left side and he fell down at the spot. Shri Bora submitted that this material improvement made by the prosecution witnesses in their story completely demolishes their evidentiary worth qua the appellants Mahender Pal and Hanuman Prasad and hence, they deserve to be acquitted. He further submitted that even qua the accused Shankar Lal, the evidence of the prosecution witnesses is flimsy and untrustworthy. The material prosecution witnesses claimed that gunshot which hit Shailendra was fired from a distance of 8-10 feet but the medical evidence absolutely contradicts their version on the aspect of distance of fire. Shri Bora further submitted that the prosecution is guilty of suppressing material evidence because the star prosecution witness Sultan Ram was not examined during trial. On these grounds, Shri Bora implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused appellants of the charges. 8. Per contra, learned Public Prosecutor and Shri Jagdish Bishnoi, Advocate representing the complainant vehemently and fervently opposed the submissions advanced by the appellants’ counsel. They urged that there was no enmity between the complainant party and the accused and thus, the claim of the defence counsel that the complainant party indulged in false implication of the accused for the incident is totally unfounded. The murder was fueled with revenge for the earlier incident of road-rage which took place between the parties on 3rd September. The prosecution witnesses gave truthful evidence and did not try to make any exaggeration whatsoever. The FIR was filed promptly and hence, there is no reason to doubt the testimony of the prosecution witnesses. They contended that the trial court appreciated the evidence in an apropos manner and the well reasoned judgment does not warrant any interference in appeal. 9. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record and have thoroughly re-appreciated the evidence led by the prosecution. 10. They contended that the trial court appreciated the evidence in an apropos manner and the well reasoned judgment does not warrant any interference in appeal. 9. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record and have thoroughly re-appreciated the evidence led by the prosecution. 10. At the outset, we may note that right from inception of the case i.e., lodging of the FIR till the investigational statements and the sworn testimony of the material prosecution eye-witnesses Ramswaroop (PW.15) the first informant, Sunil Kumar (PW.16) and Sandeep Kumar (PW.17), it is a consistent version that the fatal gunshot was fired at the deceased Shailendra by the accused Shankar Lal. To this extent, we have thoroughly appreciated the evidence of the three eyewitnesses and find that they have consistently stated that Shankar Lal fired the gunshot from a country-made pistol which hit on the left side of chest of Shri Shailendra. The Medical Jurist Dr. Baldev Singh (PW.12) proved the postmortem report of Shailendra (Ex.P/39) taking note of a single firearm entry-wound below the left nipple of lateral side admeasuring 5 cm x 4 cm x cavity deep with inverted edges. The wound comprised of 25 lacerations admeasuring 0.25 cm to 0.75 cm. Seven pellets were recovered from inside both the lungs. The medical jurist opined that the injury was sufficient in ordinary course of nature to cause death. In cross-examination, the witness stated that the gunshot wound was not having any marks of blackening. It is thus clear that the cause of death of Shailendra has been well established by the prosecution as being a gunshot wound and that the fire was made from a country-made pistol which fires pellets as projectiles. Since the wound noted by the medical jurist in the postmortem report (Ex.P/39) did not have any blackening marks, it can be presumed that the gunshot must have been fired from a distance of more than four feet. Though the prosecution eyewitnesses have modulated their stance regarding the distance of fire but this slight deviation in the matter of distance from where the gunshot was fired cannot be considered as totally discrediting the evidentiary worth of the witnesses. 11. The defence has not claimed that there existed any significant prior enmity between the parties. Though the prosecution eyewitnesses have modulated their stance regarding the distance of fire but this slight deviation in the matter of distance from where the gunshot was fired cannot be considered as totally discrediting the evidentiary worth of the witnesses. 11. The defence has not claimed that there existed any significant prior enmity between the parties. In addition to the fact that the prosecution eyewitnesses have given consistent evidence specifically attributing the fire-arm injury to the accused Shankar Lal, we may note that the IO Shri Sahiram Bishnoi (PW.13) gave convincing evidence regarding disclosure statement made by the accused Shankar Lal (Ex.P/50) leading to the recovery of a 12 bore country-made pistol vide seizure memo (Ex.P/15). The pistol was forwarded to the forensic science laboratory from where a report (Ex.P/58) was received concluding that the recovered weapon was serviceable. Thus, the factum of recovery of the firm-arm which was capable of firing pellet like projectiles which were recovered from the body of Shri Shailendra corroborates the evidence of material eyewitnesses to the extent they alleged that the accused Shankar Lal fired the gunshot which hit the deceased Shailendra and proved fatal. Hence, we are convinced that the prosecution has proved by unimpeachable evidence that the accused Shankar Lal fired shot from a country-made weapon hitting Shri Shilendra on the left side of his chest leading to his death. 12. Now we proceed to consider the evidence of the material prosecution witnesses qua their claim wherein, it was stated that the accused appellants Mahender Pal and Hanuman Prasad had caught hold of Shailendra at the time of the incident making them vicariously liable for the murder of Shailendra. In this regard, we may at the outset note that the informant, while lodging the FIR, involved Rameshwar Lal in addition to the accused Shankar Lal, Mahender Pal and Hanuman Prasad and the juvenile Mohan Lal for the crime. However, pursuant to collection of the call detail records showing presence of Shri Rameshwar Lal elsewhere, the IO did not find him involved in the crime and he was exonerated. Thus, there is a significant chink in the armour of the prosecution case to the extent of involvement of accused other than Shankar Lal. However, pursuant to collection of the call detail records showing presence of Shri Rameshwar Lal elsewhere, the IO did not find him involved in the crime and he was exonerated. Thus, there is a significant chink in the armour of the prosecution case to the extent of involvement of accused other than Shankar Lal. Qua the appellants Mahender Pal and Hanuman Prasad also, it may be noted that while lodging the FIR (Ex.P/42), a pertinent allegation was levelled by the complainant that the accused appellants Mahender Pal and Hanuman Prasad caught hold of Shailendra and gave an exhortation to Shankar Lal to make the fire whereafter he shot the weapon hitting Shailendra on the left side of his chest. However, on the face of record, this allegation as set out in the FIR and reiterated in the investigational statements of the witnesses is prima facie unbelievable because looking to the nature of weapon held by Shankar Lal, it was a foregone conclusion that the resultant fire would lead to the projectiles being hurled with great velocity and the pellets would also spread around. Shri Shailendra was a young healthy man and he would not stay stationary if he had been caught and would definitely try to struggle and in this process, despite two of the accused persons having caught hold of Shri Shailendra, the main accused Shankar Lal could not have been assured that the shot fired by him would not hit his own companions. Thus, to this extent, the allegation levelled in the FIR that the two accused Mahender and Hanuman caught hold of Shri Shailendra and in this very situation, Shankar Lal fired the gunshot upon exhortation which hit the deceased Shailendra is bound to be discarded. It seems that during trial, the prosecution witnesses received advise and changed this stance in their sworn testimony and modulated the sequence of events by alleging that initially, the accused appellants Mahender Pal and Hanuman Prasad had caught hold of Shailendra and were calling out to Shankar Lal that he should fire. Shankar Lal in turn stated that first the victim should be released and then he would fire the gunshot. On receiving this instruction, the accused Mahender Pal and Hanuman Prasad released Shailendra who started running away and Shankar Lal fired the country-made pistol hitting Shailendra on the left side of his chest. Shankar Lal in turn stated that first the victim should be released and then he would fire the gunshot. On receiving this instruction, the accused Mahender Pal and Hanuman Prasad released Shailendra who started running away and Shankar Lal fired the country-made pistol hitting Shailendra on the left side of his chest. This apparent modulation made by the prosecution witnesses in form of an improvement qua the role attributed of the appellants Mahender Pal and Hanuman Prasad is absolutely unacceptable. In addition thereto, we may state that PW.15 Ramswaroop, the first informant admitted in his cross-examination that initially he gave a hand written report which was not on record. Hence, clearly, the original FIR was also concealed by the prosecution. The same modulation which was made by Shri Ramswaroop (PW.15) was adopted by Sunil Kumar (PW.16) and Sandeep Kumar (PW17). Apparently thus, the witnesses have given a parrot like version verbatim adopting the above-mentioned material improvement. We are of the firm view that this consciously designed improvement in the version of the prosecution witnesses creates a grave doubt on their testimony to the extent they tried to implicate the accused appellants Mahender and Hanuman Prasad. 13. The witnesses also stated about presence and active participation of Rameshwar Lal and Arjun Ram in the self-same incident. Whilst Rameshwar Lal was not even charge-sheeted, the accused Arjun Ram stands acquitted by the learned trial court by the same judgment, which is assailed in this appeal. Thus, to the extent of involvement of the accused appellants Mahender Pal and Hanuman Prasad, the evidence of the material prosecution eyewitnesses is fit to be and is hereby discarded. The finding recorded by the trial court holding these two appellants guilty for the offences punishable under Sections 341 IPC and 302/34 IPC is per se unsustainable and hence is overturned. However, conviction of accused Shankar Lal does not warrant any interference. Hence, to that extent the impugned judgment dated 11.07.2013 is affirmed. 14. The appeal is partly allowed in these terms. The accused appellants Mahender Pal and Hanuman Prasad are on bail. They need not surrender. Their bail bonds are discharged. 15. However, conviction of accused Shankar Lal does not warrant any interference. Hence, to that extent the impugned judgment dated 11.07.2013 is affirmed. 14. The appeal is partly allowed in these terms. The accused appellants Mahender Pal and Hanuman Prasad are on bail. They need not surrender. Their bail bonds are discharged. 15. However, keeping in view the provisions of Section 437-A Cr.P.C., the accused appellants Mahender Pal and Hanuman Prasad are directed to furnish a personal bond in the sum of Rs.15,000/-each and a surety bond in the like amount before the learned trial court which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court. 16. Record be returned to the trial court forthwith.