The reliability of evidence and the burden of proof in criminal cases, especially in identifying assailants in dark conditions, are crucial in establishing the charge under Section 307, IPC.

F.C. Bansal, J.-The Judgment and order under challenge in the present appeal was passed on 06.08.2003 by the learned Additional Sessions Judge (Fast Track) No. 1, Dholpur in Sessions Case No. 160/2002 convicting the accused appellants Kirori and Pappu under Section 307 of the Indian Penal Code and sentencing each of them to suffer R.I. for four years and to pay a fine of Rs. 200/-and in default, to suffer R.I. for fifteen days.

The case of the prosecution, as unfolded at the trial, may, in brief , be stated as follows:-

2. On 13.03.1996 at about 2.00 a.m. Lalaram, Jeevaram, Bhawanipal and Ramveer were sleeping in the premises where stone cutting machine of Lalaram was installed. Accused Siyaram Bhagwan Singh, Pappu, Ramdayal, Chokhe, Pooran and Kirori armed with gun, Katta and lathies came there and opened fire. Accused Siyaram fired a shot with his gun which hit on the right thigh of Ramveer. Accused Pappu fired another shot which hit on the back of Bhawanipal. Accused Kirori fired a shot with his Katta and caused injury on the head of Bhawanipal. Thereafter, accused persons fled away alongwith the stone cutting blade. SHO, P.S. Badi, District Dholpur registered a case on the basis of written report Exhibit P-3 which was field by Lalaram at 8.30 a.m. on the same day. On completion of investigation police came to the conclusion that allegations levelled against the accused persons are false and, therefore, Final Report was submitted in the Court of additional Chief Judicial Magistrate, Badi. A protest petition was filed by Bhawanipal in the said Court and after examining the complainant and his witnesses under Sections 200 and 202, CrPC, the learned Additional Chief Judicial Magistrate, Badi took cognizance of the offences under Sections 147, 148, 149, 379 and 307, IPC, against accused Siyaram, Bhagwan Singh, Pappu, Ramdayal, Pooran, Kirori and Chokhe. In due course, the case was committed to the Court of learned Sessions Judge, Dholpur. On transfer the file was received in the Court of the learned Additional Sessions Judge (Fast Track) No. 1, Dholpur.

3. The learned Additional Sessions Judge framed charges under Sections 148, 379 and 307, IPC, against accused Kirori and Pappu and charges under Sections 148, 379 and 307/149, IPC, against the remaining accused. All the accused pleaded not guilty and claimed to be tried.

4. In all the prosecution examined as many as eight witnesses. Accused were examined under Section 313, CrPC, and they pleaded innocence. In their defence, no evidence was adduced by the accused.

5. On conclusion of the trial, the learned trial Court found accused appellants Kirori and Pappu guilty under Section 307, IPC and acquitted them of the remaining charges. Accused Ramdayal, Chokhe, Pooran and Bhagwan Singh were acquitted of all the charges. During trial accused Siyaram absconded.

6. I have heard the learned Counsel for the accused appellants, the learned Public Prosecutor for the State and have also perused the impugned Judgment as also the prosecution evidence.

7. As per the prosecution case, the incident took place at around 2.00 a.m. in the night and in the alleged incident Ramveer and his father Bhawanipal sustained injuries which were caused by firearmd PW. 2 Bhawanipal has stated before the trial Court that he and his son Ramveer were sleeping together on one cot. He has further stated that appellants Kirori and Pappu alongwith four other persons armed with Katta, gun and lathies, came and fired at them. Appellant Kirori fired a shot causing injury on his back and another shot was fired by appellant Pappu which hit on his neck. Ramveer was inflicted injury with firearm by accused Siyaram. But PW. 6 Ramveer has stated that he could not identify the assailants because of darkness. Same is the statement of PW. 4 Lalaram, informant, who had lodged the written report Exhibit P-3 at the police station. PW. 3 Jeevaram S/o Bhawanipal also has deposed that because of darkness, he could not have ide