ORDER Dharmadhikari, J. -- 1. This judgment shall govern the disposal of Criminal Appeal No. 407/2020 (State of M.P. v. Dr. Priyasharan Singh Thakur & Anr.) preferred by State as well as Criminal Appeal No. 7762/2019 (Dr. Priyasharan Singh Thakur v. State of M.P.) preferred by accused/ appellant herein as both the appeals arise out of common judgment dated 30.8.2019 passed by III Additional Session Judge, Sagar. 2. The State of Madhya Pradesh has preferred CRA No. 407/2020 under section 377/378 of Cr.P.C. for enhancement of sentence and against acquittal of accused Dr. Priyasharan Singh Thakur under section 302 of IPC, whereas accused Dr. Priyasharan Singh Thakur has preferred CRA No. 7762/2019 against his conviction under section 304 Part II of IPC for which he was ordered to suffer rigorous imprisonment for seven years along with fine of Rs. 10,000/- and one year rigorous imprisonment as default stipulation in case of non-payment of fine. 3. Criminal Appeal No. 407/2020 was preferred against both the accused persons namely Dr. Priysharan Singh Thakur and Martand Singh, however, vide order dated 27.1.2025, this Court has already dismissed the appeal so far as it relates to co-accused Martand Singh is concerned for the reasons recorded therein and thus, we are considering the appeal preferred by the State only against Dr. Priyasharan Singh Thakur in this judgment. 4. According to the case of the prosecution, Dehati Nalsi was recorded by Shri S.C Shrivastava, Assistant Sub-Inspector Police Station Kotwali, Sagar on 13.2.2013 at 23:00 at the instance of complainant Anil Kumar Dubey to the effect that Anil Kumar Dubey alongwith Surendra Choubey, Brijesh Dubey, Vinod Guru, Dharmendra Choubey and Shyamji Dubey had gone to attend the marriage of Anish Rawat at Hotel Ram Saroj Palace. It is also stated in the Dehati Nalsi that in the marriage, Dr. P.S Thakur (Appellant/accused herein) and Martand Singh Thakur were armed with a pistol/mouser. It is also stated in the Dehati Nalsi that on 13.2.2013 at about 8:30 PM, appellant namely Dr. P.S. Thakur along with co-accused Martand Singh Thakur armed were dancing on the song “Munni Badnam Hui” with pistols in their hands and the deceased and accused persons started quarrelling for a song played in the barat of groom namely Anish Rawat. On the instigation of Martand Singh Thakur, present appellant has shot fire from his licensed pistol at point blank on the chest of Abhishek Dubey. On the instigation of Martand Singh Thakur, present appellant has shot fire from his licensed pistol at point blank on the chest of Abhishek Dubey. Immediately, he collapsed and then he was taken to the hospital in Tavera vehicle driven by Dharmendra Choubey. However, Abhishek Dubey succumbed to the gunshot injury and declared dead in the hospital. With aforesaid allegations, Dehati Nalsi (Exhibit P-1) was lodged by complainant Anoop Kumar Dubey at about 23:00 hrs. alleging that he along with many other witnesses had seen the incident. Dehati Nalisi culminated into FIR (Exhibit P-17) registered at Crime No. 66/2023 at 23:30 hrs., for the offence under section 302/34 of IPC against both the accused persons. 5. During the course of investigation, police has recorded the statements of seven eye witnesses namely Anoop Dubey (PW-1), Vinod Guru (PW-3), Shyamji Dubey (PW-4), Brijesh Dubey (PW-6) and Anand Dubey (PW-7), Rajesh Rajak (PW-8), Rajeshwar Sen PW-9 along with the statements of other witnesses and also seized licensed pistol from present appellant along with his clothes. On completion of investigation, final report was filed under section 173 of Cr.P.C. before competent Court by prosecution and accordingly, matter was committed to the Court of Session Judge, Sagar in form of S.T. No. 900114/2014. The Appellant was charged for the offence punishable u/s 302 while the coaccused Martand Singh was charged u/s 302 with the aid of section 34 of the I.P.C. 6. The prosecution led evidence by examining as many as 19 witnesses, namely Anoop Dubey - P.W.1, Dharmendra Choubey - P.W.2, Vinod Guru - P.W.3, Shyamji Dubey - P.W.4, Shivakant Sahu - P.W.5, Brijesh Dubey- P.W.6, Anand Dubey - P.W.7, Rajesh Rajak - P.W.8, Rajeshwar Sen -P.W.9, Dr. R.K. Khare - P.W.10, Dr. Jitendra Saraf - P.W.11, Subash Chandra Shrivastava - P.W.12, Shatrudhan Dubey - P.W.13, Shiv Mohan Singh Parihar - P.W.14, Bholenath Yadav - P.W.15, Kamlesh Devaliya - P.W.16, Saurabh Parmar-P.W.17, Prashant Kumar Mishra- P.W.18 and Rajendra Tiwari- P.W.19. Prosecution led evidence by exhibiting documents i.e. Dehati Nalsi- Ex. P/1; Notice for enquiry of death- Ex. P/2, Naksha Panchnama - Ex. P/3, Shav Supurdnama - Ex. P/4, Crime detail Form Ex. P/5, Seizure Memo of the vehicle bearing No. M.P.15 BA 1535-Ex. P/6, 161 statements of Dharmendra Choubey, Vinod Guru and Shyamji Dubey- Ex P/7 to Ex. P/9, Seizure memos- Ex. P/10- Ex. P/12, 161 statements of Rajesh and Rajeshwar- Ex. P/2, Naksha Panchnama - Ex. P/3, Shav Supurdnama - Ex. P/4, Crime detail Form Ex. P/5, Seizure Memo of the vehicle bearing No. M.P.15 BA 1535-Ex. P/6, 161 statements of Dharmendra Choubey, Vinod Guru and Shyamji Dubey- Ex P/7 to Ex. P/9, Seizure memos- Ex. P/10- Ex. P/12, 161 statements of Rajesh and Rajeshwar- Ex. P/13 and Ex. P/14, Information to the doctor by the S.H.O- Ex P/15, Post Mortem Report- Ex P/16, First Information Report- Ex. P/17, Information of Death- Ex. P/18, Seizure memo of property- Ex. P/19, Form for sending the articles -Ex. P/20, Seizure Memo- Ex P/21, Arrest memo of the Appellant- Ex. P/22, Draft by S.P. to F.S.L.- Ex. P/23, FSL Reports- Ex. P/24 and Ex.P/25, Seizure Memo of the property- Ex. P/26, Draft by S.P. to F.SL.- Ex.P/27 to Ex. P/32, Reports by F.S.L.- Ex. P/33-Ex. P/37. 7. After recording the evidence of the Prosecution witnesses, statement of the Appellant u/s 313 were recorded. So far as the co-accused Martand Singh is concerned, he was acquitted vide order dated 22.11.2017 by invoking the provisions of section 232 of Cr.P.C. It was deposed by the appellant u/s 313 of Cr.P.C that on the date of the incident he had gone in the ‘baarat’ of Anish Rawat and he saw Abhishek Dubey suddenly fell on the ground. He was called by Raghvendra to see as to what has happened to Abhishek. The Appellant, who is a Doctor, examined the pulse of Abhishek that his pulse was running slow and the general condition was not good. It was also stated by the Appellant that he told Raghvendra to call for a vehicle as Abhishek will have to be taken to the Hospital. It was further stated that Abhishek Dubey was taken by Raghvendra and himself to Tili Hospital in a Tavera Vehicle. While he was on the way to the Hospital, he contacted the other doctors. The Doctors in the Hospital found Abhishek to be dead. It was further stated that at Hotel Ram Saroj Palace, there were about three Barat processions and many persons were armed with revolver, pistols and guns and were firing in the air. He expressed his inability as to which fired shot hit Abhishek. The Doctors in the Hospital found Abhishek to be dead. It was further stated that at Hotel Ram Saroj Palace, there were about three Barat processions and many persons were armed with revolver, pistols and guns and were firing in the air. He expressed his inability as to which fired shot hit Abhishek. He also stated that he has been falsely implicated on account of political rivalry as his wife had won the election of Counsellor for four times while Martand Singh was the brother of his wife and had contested the election for the President Mandi against Vinod Guru. It was also contended that the deceased belonged to the Congress party and as such he has been falsely implicated. It was also stated that the Town Inspector came to his house after about 2-3 days of the incident and took his revolver, cartridges, license and his blood-stained clothes under the pretext that the enquiry is being done in respect to the license holders of the weapon. It was also stated that the T.I. also obtained his signatures. The said documents were post-dated and have been used for the purposes of seizure memo. 8. After recording of statement of appellant under section 313 of Cr.P.C., the matter was fixed for the defence evidence of the appellant. The appellant examined as many as seven witnesses in his defence which are as follows: Saurabh Raikwar- D.W-1, Pankaj Soni-D.W-2, Shivani- D.W-3, Anish Rawat- D.W- 4, Raghvendra Thakur-D.W-5, Sanjay Bhatt D.W-6 and Deepak Dubey- D.W-7. Out of the said defence witnesses, Anish Rawat, Raghvendra Thakur and Deepak Dubey were cited as witnesses in the charge-sheet filed by the prosecution but were not examined on its behalf. In the defence, the following documents were exhibited i.e. Statements of Anand Dubey and Anoop Dubey as Ex. D/1 and Ex D/2 respectively, Rojnamchasana as Ex. D/3, Police Statement of Anish Rawat as Ex. D/4, Marriage photo as Ex. D/5, Certificate u/s 65-B of the Indian Evidence Act as Ex. D/6 and Ex. D/7, C.D. as Ex. D/8, Photocopy of the memo register-as Ex. D/9-C, Two letters addressed to the Additional Superintendent of Police along with a list as Ex. D/10- Ex. D/12. 9. D/3, Police Statement of Anish Rawat as Ex. D/4, Marriage photo as Ex. D/5, Certificate u/s 65-B of the Indian Evidence Act as Ex. D/6 and Ex. D/7, C.D. as Ex. D/8, Photocopy of the memo register-as Ex. D/9-C, Two letters addressed to the Additional Superintendent of Police along with a list as Ex. D/10- Ex. D/12. 9. Learned trial Court after recording the entire evidence, lead on behalf of the prosecution and also that on behalf of the defence, by judgment dated 30.8.2019, convicted the Appellant for the offence punishable under section 304-Part II of I.P.C. and sentenced the accused with rigorous imprisonment of seven years and fine of Rs. 10,000/- and 1 year rigorous imprisonment as default stipulation in case of nonpayment of fine. The trial Court framed two points/issues for considerations, which were as follows :-- i. Whether the death of Abhishek Dubey was homicidal in nature? ii. Whether the Homicidal death was caused by the Appellant-Priyasharan Thakur? 10. Learned Counsel appearing for the appellant in Criminal Appeal No. 7762/2019, made a fervent effort to persuade this Court that there is an obvious contradiction in the prosecution story as narrated by the so called eye witnesses which should enure to the benefit of the appellant. Learned Counsel for appellant has argued that total seven eye witnesses namely PW-1 Anoop Dubey, PW-3 Vinod Guru, PW-4 Shyamji Dubey, PW-6 Brijesh Dubey, PW-7 Anand Dubey, PW-8 Rajesh Rajak, and PW-9 Rajeshwar Sen were examined by the prosecution, however, none of these witnesses were found present at the spot of incident even for a single moment in view of C.D. containing Videography of Procession which was marked as Article A produced by PW-19 Investigation Officer namely Rajendra Tiwari and the Call Detail Records containing tower location of the eyewitnesses. These eye witnesses are close relative to the deceased Abhishek Dubey and complainant PW-1 Anoop Dubey was the real brother of the deceased. It has been further argued that the incident has been alleged to have been taken place at 8:30 PM in the ‘barat’ of groom namely Anish Rawat where more than thousand persons were present, however, prosecution has failed to produce a single independent eye-witness to the alleged incident. All the eye witnesses deviated from their statements recorded under section 161 of the Cr.P.C. by the police and they also turned hostile as against coaccused Martand Singh. All the eye witnesses deviated from their statements recorded under section 161 of the Cr.P.C. by the police and they also turned hostile as against coaccused Martand Singh. Two eye witnesses namely Rajesh Rajak PW-8 and Rajeshwar Singh PW-9 turned hostile, completely. It is further argued by the counsel for appellant that the Learned Trial Court has itself recorded a finding to the effect that these eye witnesses were not present at the place of incident and further, pointed out that as per the trial Court’s finding itself, the incident took place without any dispute. It is further argued by the counsel for appellant that the ballistic report is contrary to the prosecution story and the bullet seized from the body of deceased did not match with the pistol seized from the appellant/accused in absence of sufficient data. It is further argued that contrary to the expert opinion, ballistic report as well as contrary to the statement of medical expert PW-11 Dr. Jitendra Saraf, Learned Trial Court has passed the judgment of conviction based on conjectures and surmises. It has been further argued that the complainant PW- 1 Anoop Dubey was at home at the time of incident, relying upon the tower location and the statements of DW-1 Sourabh Raikwar. He also argued that the statements of groom namely Anish Rawat DW- 4 and the statements of Raghvendra Thakur DW-5 were not considered by the Learned trial Court while passing the impugned judgment, by wrongly holding that the act of present appellant was without intention, however he was carrying a gun in a marriage, hence he must have knowledge that such act may cause death of present appellant, and thereby wrongly convicted him. 11. Per Contra, Learned Counsel for the State has opposed the appeal of accused while arguing that the judgment passed by Learned trial Court does not warrant any interference at the behest of the accused and further argued that in light of the evidence led by the prosecution, the appellant Dr. Priyasharan Singh ought to have been convicted under section 302 of I.P.C instead of section 304 Part II of I.P.C. 12. We have carefully heard the arguments of both the parties, examined the evidence adduced by prosecution and defence before the Learned trial Court. 13. Priyasharan Singh ought to have been convicted under section 302 of I.P.C instead of section 304 Part II of I.P.C. 12. We have carefully heard the arguments of both the parties, examined the evidence adduced by prosecution and defence before the Learned trial Court. 13. Before arriving to a conclusion, it is necessary to scrutinize the statements of prosecution witnesses as well as defense witnesses in light of the guidelines laid down by Hon’ble apex Court in the case of Mahavir Singh. v. State of M.P. (2016) 10 SCC 220 in which law relating to marshalling of evidence of related witnesses/ witness by chance has been discussed in following terms :-- “18. The High Court has attached a lot of weight to the evidence of the said Madho Singh (PW 9) as he is an independent witness. On perusal of the record, it appears that the said person already had deposed for the victim family on a number of previous occasions, that too against the same accused. This being the fact, it is important to analyze the jurisprudence on interested witness. It is a settled principle that the evidence of interested witness needs to be scrutinized with utmost care. It can only be relied upon if the evidence has a ring of truth to it, is cogent, credible and trustworthy. Here we may refer to chance witness also. It is to be seen that although the evidence of a chance witness is acceptable in India, yet the chance witness has to reasonably explain the presence at that particular point more so when his deposition is being assailed as being tainted. 22. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved [See : Abdul Sayeed v . State of M.P., (2010) 10 SCC 259 ]...” 14. However, where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved [See : Abdul Sayeed v . State of M.P., (2010) 10 SCC 259 ]...” 14. While examining the statements of eyewitnesses PW-1, PW-3, PW-4, PW-6 and PW-7 on the anvil of guidelines laid down by the Hon’ble apex Court in case of Mahavir Singh v. State of M.P. (supra), it is found that all these witnesses turned hostile with respect to co-accused Martand Singh and made allegation as against the appellant herein only, however, in dehati nalsi, FIR as well as in statements recorded under section 161 of CrPC, all these witnesses have alleged specifically that present appellant has fired shot from his pistol on the instigation of Martand Singh. Thus, they deviated from their statements very conveniently which puts a dent on the credibility and veracity of their testimony. Similarly, in para 6 and 7 of cross examination of PW-1 Anoop Dubey, it was admitted that he was at his home at the time of incident and received a call from Ramji at 9:23 PM. Similarly, PW-3 Vinod Guru in para 11 of his cross examination has admitted that he was not present at the place of incident and other eye witnesses also admitted the same in their respective testimonies that they were not present at the spot. It has been further admitted by them during cross examination that they all rushed to the hospital directly upon receiving intimation over phone. Also, admittedly none of these eye witnesses appear in the videography contained in C.D (Article A) prepared by videographer during marriage. 15. In order to make bare the falsity of prosecution story, appellant has examined DW-1 Sourabh Raikwar who had placed on record tower location and call log details of eye witnesses which establish that at the time of alleged incident, prosecution’s eyewitnesses were not present at the spot. Appellant has also examined DW - 2 Pankaj Soni, DW- 4 Anish Rawat (groom) and DW - 5 Raghvendra Thakur who have deposed that the prosecution’s eyewitnesses were not present at the spot of incident. These defense witnesses are independent witnesses and their credibility cannot be doubted especially in absence of any allegation against them. Appellant has also examined DW - 2 Pankaj Soni, DW- 4 Anish Rawat (groom) and DW - 5 Raghvendra Thakur who have deposed that the prosecution’s eyewitnesses were not present at the spot of incident. These defense witnesses are independent witnesses and their credibility cannot be doubted especially in absence of any allegation against them. It has been pointed out by Anish Rawat DW - 4 that many persons were firing at the time of marriage celebration and once deceased Abhishek Dubey collapsed, present appellant/Dr. P.S. Thakur along with Raghvendra Thakur DW-5 took him to the hospital. It is also stated by DW-4 that the prosecution’s eye witnesses were never invited by him and never included in the list of guests. While scrutinizing the statements of DW-5 Raghvendra Thakur coupled with statements of Dr. R. K. Khare PW-10, it is proved beyond preponderance of probability that DW-5 Raghvendra has firstly called Dr. P.S. Thakur to check the deceased when he collapsed during dance and then they both took him to the hospital, where Dr. R.K. Khare examined the deceased and sent intimation memo to police signed by Raghvendra. This also appears as a plausible explanation for the blood stains on the shirt as well as on the coat of Dr. P.S. Thakur which were seized by police and exhibited as Exhibit 34, 35 & 36. Surprisingly, there were no blood stains found on the clothes of eye witnesses. Thus, looking to the deviation made by prosecution’s eye witnesses from their statements under section 161 of Cr.P.C. as well as tower location of the eye witnesses produced and proved through scientific method, presence of all such eye witnesses is doubtful at the place of incident and thus, the story narrated by such witnesses has rightly not been relied upon by Learned trial Court. 16. While going through Exhibit- P/25 ballistic report produced by PW-18 T.I. Prashant Mishra, who had seized the pistol and clothes from Dr. P.S. Thakur on 27.11.2013, it is apparent that in Ballistic report Exhibit P/25 given by an expert witness, a finding has been recorded that there is no sufficient data to form an opinion that bullet killing the deceased was fired from the pistol seized from the appellant. P.S. Thakur on 27.11.2013, it is apparent that in Ballistic report Exhibit P/25 given by an expert witness, a finding has been recorded that there is no sufficient data to form an opinion that bullet killing the deceased was fired from the pistol seized from the appellant. In our considered opinion, Learned trial Court has erred in law while recording a finding in paragraph 110 of impugned judgment holding that the bullet must have been fired from the pistol of present appellant while lowering down the same as it may be stuck while firing in air and hit the deceased, which is nothing but a finding recorded without any cogent evidence. The Court has to record a finding based on certain facts and evidence produced before it and not based on certain presumptions which run contrary to the evidence or uncorroborated by material brought on record. Similarly, expert opinion cannot be discarded in such a casual manner especially under the circumstances where co-accused Martand Singh was also having a pistol along with other persons who were firing during the ceremony as has been deposed by independent defence witnesses. The prosecution has failed to seize the pistol from co-accused Martand Singh and also from other persons who were firing during the ceremony who were present at the time of incident on 13.2.2013. Prosecution has to prove its case beyond reasonable doubt as burden lies on the shoulders of investigation agency to prove the case against the accused. It has been deposed by witnesses that many persons were firing during the ceremony and ballistic report regarding bullet found on the body of deceased did prove that the same was fired from the pistol seized from present appellant. Thus, it cannot be concluded beyond reasonable doubt that the appellant herein fired the bullet which was responsible for the death of victim deceased Abhishek Dubey. 17. Learned trial Court has also very conveniently and erroneously brushed aside the expert opinion given by Dr. Jitendra Saraf PW-11 and recorded a finding in para 71 of the impugned judgment that the opinion given by Dr. Jitendra Saraf is not acceptable as it is contrary to the ballistic report. We have already observed that the findings record by the Learned trial Court in para 77 is not correct and thus, the observation made by the Learned trial Court contrary to expert medical opinion is unwarranted and unnecessary. Jitendra Saraf is not acceptable as it is contrary to the ballistic report. We have already observed that the findings record by the Learned trial Court in para 77 is not correct and thus, the observation made by the Learned trial Court contrary to expert medical opinion is unwarranted and unnecessary. It is a settled principle of law that the Court can form its own opinion contrary to the opinion given by expert witness, however, such reasoning has to be based upon strong evidence which is not capable of being doubted. 18. In view of the aforesaid, we are of the considered opinion that the findings recorded by Learned trial Court holding the present appellant guilty for the offence under section 304 Part II of IPC is not sustainable in the eyes of law and the findings which were recorded contrary to ballistic report as well as medical expert are purely based on presumptions. Under these circumstances, the guilt of the appellant is not proved beyond reasonable doubt, the appellant therefore must be given benefit of doubt. Hence, we disapprove the findings of the trial Court, as also the conviction and sentence of appellant. 19. That, Hon’ble apex Court in case of Chandrappa v. State of Karnataka (2007) 4 SCC 415 , while dealing with the appeal against acquittal has laid down general principles in para 42 as under :-- “On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside.” 20. In view of the aforesaid findings, when tested on the anvil of guidelines laid down by Hon’ble apex Court in case of Chandrappa (supra), the Criminal Appeal No. 407/2020 preferred by State of M.P. against Dr. Priyasharan Singh Thakur for enhancement of sentence and against acquittal is hereby dismissed. 21. In view of the aforesaid findings, when tested on the anvil of guidelines laid down by Hon’ble apex Court in case of Chandrappa (supra), the Criminal Appeal No. 407/2020 preferred by State of M.P. against Dr. Priyasharan Singh Thakur for enhancement of sentence and against acquittal is hereby dismissed. 21. Furthermore, in view of the findings made hereinabove, Criminal Appeal No. 7762/2019 filed by accused Dr. Priyasharan Singh Thakur deserves to be allowed and is hereby allowed. Ex Consequenti, judgment of conviction dated 30.8.2019 passed by the Learned III Additional Session Judge, Sagar in S.T. No. 900114/2014 is hereby set aside. The appellant is acquitted from the charge of section 304 Part II of IPC and he shall be released forthwith from the custody, if not needed in any other case. 22. A copy of this judgment be sent to trial Court for information and necessary compliance.