S. I. JAFRI, J. ( 1 ) SAMMAN Singh appellant has filed this appeal against his conviction under Section 302 I. P. C. and sentence of the imprisonment recorded by Sri V. S. Kulshrestha, 6th Additional District and Sessions Judge. Moradabad by his Judgment and order dated 6. 6. 1977. Co-accused Dronveer Singh and Ahbaran Singh were also tried alongwith the appellant Samman Singh but they were acquitted by the Trial Court. ( 2 ) THE prosecution case in brief is that appellant Samman Singh was running a Government Workshop who used to get monthly quota of sugar from the Government for distribution to the Villagers by sale but he did not distribute the same to the villagers. Therefore, the deceased Jagan Singh objected to this illegal practice but the accused Sam man Singh did not care. It is also said that the deceased Jagan Singh about four or five days prior to the present occurrence again reminded Sam man Singh to distribute the sugar properly to the residents of the Village on his Chabutra of his Chaupal and warned him that he would be compelled to take legal action against him whereupon Samman Singh told him that he may do whatever he liked and also appellant Samman Singh said that he would make arrangement for him. This altercation was heard by Bahori who was present there. It is further stated that the deceased got prepared a complaint immediately scribed by the aforesaid Bahori Singh against Samman Singh in connection with the misappropriation of the quota of Sugar and he also got thumb impressions and signatures of the villagers thereon. Appellant Samman Singh became very much annoyed and warned the deceased that he should not become a leader in connection with the distribution of Sugar allotted to him by the Government otherwise consequences would not be good. Thakur Lal, khan. Appellant Samman Singh became very much annoyed and warned the deceased that he should not become a leader in connection with the distribution of Sugar allotted to him by the Government otherwise consequences would not be good. Thakur Lal, khan. Singh Pradhan of the village intervened in the matter and he convened Panchayat to avoid any quarrel between Samman Singh and the deceased in connection with distribution of sugar, and it was decided in the said Panchayat that Sam man Singh would distribute one bag sugar accordingly in the village on 14th day of each month otherwise the prepared complaint would be forwarded to the Authorities concerned and the said complaint was kept by the Pradhan but Samman Singh appellant inspite of the above mentioned compromise, felt aggrieved with the deceased. ( 3 ) IT is alleged that in the intervening night between 9/10. 9. 1977, P. w. 1 Rajendra Singh alongwith P. W. 2 Bhagwan Singh and one Deoki Nandan had gone to look after the crops in their fields to avoid any damage from Neel Gat and when they were returning back to their houses from their fields at about 2 A. M. and when they reached near the house of the complainant, appellant Samman Sineh alongwith Dronveer Singh and Ahbaran Singh were seen standing in the moon-light at the Chabutra of the deceased Jagan Singh where the deceased Jagan Singh was sleeping on a cot and then Sam man Singh had pointed his gun on the chest of the deceased while Dronveer Singh and Ahbaran Singh were standing there armed with Lathis pointing towards the deceased, and as soon as P. W. 1 Rajendra Singh flashed his torch towards them immediately appellant Sam man Singh fired his gun on the chest of the deceased Jagan Singh on a point blank range. Thereupon P. W. 1 Rajendra Singh and his companions cried out and challenged the accused but they made good their escape by threatening the witnesses. P. W. 1 Rajehdra Singh and others also gave a chase to apprehend the accused but in vain. When he reached near his father, he found him dead due to gun shot injuries. During the night, he did not proceed to lodge the report to the Police Station on account of fear. P. W. 1 Rajehdra Singh and others also gave a chase to apprehend the accused but in vain. When he reached near his father, he found him dead due to gun shot injuries. During the night, he did not proceed to lodge the report to the Police Station on account of fear. ( 4 ) NEXT morning Rajendra Singh P. W. 1 reached the police station Bilari and lodged the report Ex. Ka. 2 on 10. 9. 1976 naming the three accused as assailants. P. W. 5 Roshan Lal Sharma prepared the, chik report on the basis of Ex. Ka. 2 and Copy of the same is Ex. Ka. 8. He also registered a case in the General Diary of the Police station and the copy of the G. D. Entry is Ex. Kil. 9 ( 5 ) P. M. 8 Han Singh, S. I. was present at the Police Station when the aforesaid case was registered. He took up the investigation of the case and interrogated the informant Rajendra Singh at the Police Station. Then he proceeded to the place of occurrence and prepared the inquest on the dead body of the deceased lagan Singh, The Inquest report is Ex. Ka. 15. He sealed the dead body and sent the corpse to the mortuary alongwith relevant papers for post-mortem examination through constables P. W. 4 Tara Singh and Mahesh Chand. P. W. 8 Han Singh also recovered blood stained and unstained earth and prepared the recovery memo Ex. Ka. 4 and he also found one empty cartridges Ex. 10 from below the Chabutra of the deceased and sealed the recovered empty cartridge in a cloth. He prepared recovery memo Ex. Ka. 16 of the said partridge and he also took in his possession the complaint Ex. Ka. 1 which was scribed by Bahori Singh. He, then, recorded the statement of Bhagwan Singh and then he prepared the site plan Ex. Ka. 22. He, then, recorded the statement of Deoki Nandan on Bahori Singh. He made search for the accused and 11. 9. 1976, and took the search of the house of the appellant and recovered a S. B. B. L. gun and belt of cartridges containing 40 live cartridges from inside the room of the accused. He sealed the gun at the spot and prepared recovery memo Ex. Ka. 23. ( 6 ) DR. 9. 1976, and took the search of the house of the appellant and recovered a S. B. B. L. gun and belt of cartridges containing 40 live cartridges from inside the room of the accused. He sealed the gun at the spot and prepared recovery memo Ex. Ka. 23. ( 6 ) DR. V. C. S. Yadav P. W. 3 conducted the post mortem examination on the dead body of the deceased Jagan Singh on 11. 9. 1976 at about 2. 30 P. M. and found the following ante-mortem injuries on the person of the deceased. The post mortem report is Ex. Ka. 7. A gun shot wound 4 cm x 3 cm on the middle of chest slightly towards the left side directing into chest cavity 8 cm below the supra sternal notch. There is scorching, blackening around the wound. There is underneath fracture of 3 rd rib (left) at the sternal end and adjacent. ( 7 ) ON internal examination, he found the right lung of the deceased lacerated and blocked and 11 small shots were recovered from the lung cavity. The left lung was also found lacerated and blocked and he also recovered pieces of four wads and seven small shots from the lung cavity. Pericardium was also found to be ruptured. Large vessels were also found to be ruptured. Doctor also found semi digested food 4 ounces in the stomatch of the deceased. In the opinion of the Doctor the death was caused due to shock and heamorrhage as a result of gun shot injuries on chest and ribs and internal organs. ( 8 ) THE Investigating Officer dispatched the empty cartridge found at the place of occurrence and the gun belonging to the appellant to the Ballastic Expert for comparison. Sri Om. Prakash Mani Tripathi, Ballastic Expert U. P. Forensic Science Laboratory Lucknow compared the empty cartridge and the gun of the appellant and he opined that the empty cartridge we fired from the gun belonging to the appellant. The Ballastic Experts report IS Ex. Ka. 16 which was tendered in. evidence by the prosecution. The investigation was taken over by Mahak Singh Station Officer who after completing the investigation submitted charge-sheet Ex. Ka. 25 on 10. 11. 1976 against the accused. The Ballastic Experts report IS Ex. Ka. 16 which was tendered in. evidence by the prosecution. The investigation was taken over by Mahak Singh Station Officer who after completing the investigation submitted charge-sheet Ex. Ka. 25 on 10. 11. 1976 against the accused. ( 9 ) THE appellant pleaded not guilty to the charge and stated that he was implicated in this case on account of enmity. ( 10 ) AFTER hearing learned counsel for the appellant and also learned Government Advocate for the State for sometime, we thought it necessary to examine Sri Om Prakash Mani Tripathi, Ballastic Expert in the interest of justice. Therefore the Expert was summoned and we had examined him in the Court who affirmed that he had prepared the report Ex. Ka. 26 which is on the record of this case. ( 11 ) AFTER the examination of Ballastic Expert, we heard. Sri C. S. Saran, the learned counsel for the appellant and also learned Government Advocate for the State at a great length and we feel that the appeal must be allowed and the conviction of the appellant must be set aside. ( 12 ) THE prosecution examined nine witnesses in all in support of its case. Out of them P. W. 1 Rajendra Singh and P. W. 2 Bhagwan Singh were produced as eye witnesses of the occurrence P. W. 2. Bhagwan Singh did not support the case of the prosecution and he was declared hostile. Therefore, we are left with the evidence of P. W. 1 Rajendra Singh who is the son of the deceased. He has narrated the prosecution story as given out by him in the First Information Report Ex. Ka. 2 lodged at the Police Station next day of the occurrence at 9. 15 A. M. on 10. 9. 1977. He stated that on the night of occurrence, Ramayan was recited in his house and after hearing the recital, his father went to sleep on a cot at the Chabutra of his house at about mid-night when the recital of Ramayan was over. P. W. Rajendra Singh further stated that after the Ramayan was over, he went out alongwith Bhagwan. He stated that on the night of occurrence, Ramayan was recited in his house and after hearing the recital, his father went to sleep on a cot at the Chabutra of his house at about mid-night when the recital of Ramayan was over. P. W. Rajendra Singh further stated that after the Ramayan was over, he went out alongwith Bhagwan. Singh, Deoki Nandan to have a look at the crop-standing in their fields in order to ensure protection of the crop against the menace of Neel Gai and when at about 2 A. M. he alongwith Bhagwan Singh and Deoki Nandan came back from the fields and reached near his Chabutra, he saw the appellant alongwith co-accused Dronveer Singh and Ahbaran Singh standing near the cot of his father in the light of moon. Appellant Samman Singh was armed with a gun and the remaining two accused were having lathis and it was a moon-lit night. On noticing the accused the complainant Rajendra Singh and his two companions had flashed their torches whereupon Samman Singh appellant by keeping the barrel on the chest of his father fired the gun and had thrown the empty cartridge out of the barrel and loaded the gun again and remarked that he had distributed the sugar to the deceased and if anyone would make any attempt to come near them, he would be killed. The appellants were chased by the witnesses but they had run away from the scene of occurrence. When P. W. 1 Rajendra Singh came back near his father, he found him dead. He also stated that next day, he went to the Police Station and lodged the Report Ex. Ka. 2. It was contended by the learned counsel for the appellant that the story set no by the prosecution is highly improbable and the version of the complainant Rajendra Singh is not corroborated by the statement of his two companions Bhagwan Singh and Deoki Nandan who bad also seen the occurrence. It was further stated that the story regarding recital of Ramayan at the house of the deceased on the fateful night upto mid. night is not mentioned in the First Information Report. Therefore, it is highly doubtful whether any recital of Ramayan had actually taken place at the house of the deceased on the fateful night. It was further stated that the story regarding recital of Ramayan at the house of the deceased on the fateful night upto mid. night is not mentioned in the First Information Report. Therefore, it is highly doubtful whether any recital of Ramayan had actually taken place at the house of the deceased on the fateful night. No one amongst the residents of the village was produced to state that Ramayan was recited at the house of the deceased on the night of the occurrence and, therefore, we hold that the recital of Ramayan at the house of the deceased on the night of the occurrence is highly doubtful and in that way the assertion of the complainant that after hearing Ramayan on that night, he went to watch the crop in his fired alongwith Bhagwan Singh and Deoki Nandan is also not believeable. It appears that the story of recital of Ramayan and consequent departure of the complainant in the company of Bhagwan Singh and Deoki Nandan for his field for watching the crop for has been set up by the prosecution to enable the complainant to return at the time of the occurrence near the Chabutra of his house in order to witness the assault on his father. Therefore, we hold that the presence of the complainant at the time of occurrence near the Chabutra of his house it highly downfall and as such his evidence is not at all reliable. ( 13 ) IT was further contended by the learned counsel that the statement of the complainant that the appellant had fired the gun by keeping the barrel on the chest of his father, is be lied by the nature of the injury received by the deceased. There was a gun shot wound 4 x 3 on the middle of the slightly on the left side directly into the chest cavity 8 below supra sternal notch. There was scorching, blackening around the wound. ( 14 ) WE had also summoned the gun Ex. B of the appellant and at the time of examination of Sri Om Prakash Mani Tripathi, Ballastic Expert, the gun was available for his examination in the Court. ( 15 ) IT was further contended by the learned counsel for the appellant that no reliance be placed on the report Ex. Ka. B of the appellant and at the time of examination of Sri Om Prakash Mani Tripathi, Ballastic Expert, the gun was available for his examination in the Court. ( 15 ) IT was further contended by the learned counsel for the appellant that no reliance be placed on the report Ex. Ka. 26 and the statement of the Ballastic Expert Sri Om Prakash Mani Tripathi to the effect that the empty cartridge found on the place of occurrence by the Investigating Officer was fired from the gun of the appellant as it is highly doubtful that the empty cartridge alleged to have been recovered from the place of occurrence on 10. 9. 1976 by P. W. 8 Han Singh, Investigating Officer, remain ed intact and was not tampered with till the examination by the Ballastic Expert. It may be noted that P. W. 8 Han Singh had stated that he had found one empty cartridge below the Chabutra of the deceased on 10. 9. 1976 and he had deposited the same in the Malkhana of the Police Station the same day on his return from the place of the occurrence but the said empty cartridge remained at the Police Station till 18. 1. 1977 as it was sent from Police Station Bilari to Sadar Malkhana Moradabad on 19. 1. 1977. In this way, the empty cartridge remained at the Police Station Bilari for about four months. The gun of the appellant was also taken into possession by the aforesaid Investigating Officer from the house of the appellant on 11-9-1976 which was also kept in the Malkhana of the said Police Station and the gun also remained lying in the Malkhana of the Police Station till 18. 1. 1977 as it was also sent to Sadar Malkhana Moradabad from Police Station Bilari on 19. 1. 1. 1977 as it was also sent to Sadar Malkhana Moradabad from Police Station Bilari on 19. 1. 1977 the date on which empty cartridge was sent to Sadar Malkhana Moradabad from Police Station Bilari Consequently, it was contended by the learned counsel for the appellant that the Police had in their possession the gun of the appellant and also the alleged empty cartridge found at the place of occurrence and, therefore, the Investigating Officer had ample opportunity to tamper with the alleged empty cartridge during this period of about four months Reliance has been placed on 1956 Supreme Court page 526 Paras 14 and 16 where their Lordships have observed that there was inordinate delay in sending tile sealed parcel of (a) the empty cartridge case recovered fro n the scene of occurrence, and (b) the rifle recovered from the house of the accused for the opinion of the Ballastic Expert and in the case stated above, the empty cartridge case was alleged to have been recovered from the place of occurrence by the Police on Sept. 1954 when Police went there for investigation after the receipt of First Information Report from Uttam Singh P. W. 16, and the cartridge was sealed. The sealed parcel of the empty cartridge case was sent: to Doctor Goyal as late as on 27th October, 1954 i. e. empty cartridge was sent alongwith the rifle for comparison after about one and half months of its recovery and it remained at the Police station throughout. It was further observed by the Honble Supreme Court that even if it is accepted as given out by the Sub Inspector of the Police that the empty cartridge case had to be kept at the Police station till the rifle used was recovered so that both might be sent to the Expert for his opinion, nothing has been stated why after the rifle was recovered on 26th Sept. 1954 alongwith 24 cartridges from the house of the accused, it was incumbent for the police to retain parcel of the rifle and the empty cartridge with them till 11th October, 1954. 1954 alongwith 24 cartridges from the house of the accused, it was incumbent for the police to retain parcel of the rifle and the empty cartridge with them till 11th October, 1954. It was further observed that naturally this in ordinate delay raises much suspicion and has given rise to the suggestion on the part of the accused made in the course of the cross examination of the Sub Inspector that empty cartridge case ultimately sent to the Expert relates to a cartridge that was fired by them at the Police station and not one recovered at the Police Station. Therefore, in view of the inordinate delay in sending the empty cartridge to the Ballastic Expert after keeping it at the Police Station for period of about one and half months, Honble Supreme Court did not rely upon the evidence of the Ballastic Expert to the effect that the empty cartridge was fired from the rifle of the accused. ( 16 ) IN the present case admittedly the empty cartridge found at the place of occurrence by the Investigating Officer and the gun of the appellant remained at the Police Station for more than four months and they were not sent to the Sadar Malkhana Moradabad. There is no plausible explanation as to why they were sent to Malkhana Sadar from the Police Station after a delay of more than four months. The inordinate delay in sending the empty cartridge and the gun to Sadar Malkhana by the Police has created a strong suspicion whether the alleged recovered empty cartridge was sent to the Ballastic Expert or in its place another empty cartridge fired by the gun of the appellant at the Police Station by the Police was sent to the Ballastic Expert for comparison as there was ample opportunity for the Police to have done so. The prosecution has also failed to give any cogent explanation for keeping the empty cartridge found at the spot and the gun of the appellant at the Police Station Bilari for a period of more than four months. The prosecution has also failed to give any cogent explanation for keeping the empty cartridge found at the spot and the gun of the appellant at the Police Station Bilari for a period of more than four months. ( 17 ) WE hold that it is highly doubtful whether the alleged empty cartridge found by the Investigating Officer at the place of the occurrence was sent to the Ballastic Expert for comparison with the gun of the appellant and therefore, it will not be safe to place any reliance on the opinion of the Ballastic Expert examined in this case. ( 18 ) WE further hold that for placing reliance on the opinion of the Ballastic Expert to the effect that the empty cartridge found at the place of occurrence was fired by the gun of the accused, the prosecution must ensure that the empty cartridge found on the spot was sent to Sadar Malkhana a from the Police without any inordinate delay. The long delay in sending the recovered empty cartridge to Sadar Malkhana from the Police Station creates lot of suspicion that the empty cartridge after its recovery from the spot remained intact and it was not tampered with by the Police. ( 19 ) IN the result the appeal is allowed. The conviction and sentences passed against the appellants by the Trial Court are set aside. He is on bail. He need not surrender. His bail bonds are cancelled. Appellants set at liberty .