JUDGMENT 1. - This is an appeal against the judgment of learned Sessions Judge, Jhalawar, convicting the accused appellant under section 302 IPC and sentencing him to life imprisonment and a fine of Rs. 1,000/-, in default of payment of fine, to undergo further R.I. for one year, and also under section 7/25, Arms Act to two years RI. 2. Ram Narain, Head Constable (PW-1) lodged a report at Police Station Manohar Thana at 11.45 PM to the effect that he, alongwith Ramzan Khan, was sitting in the office and Head Constable Shafi Mohd. was also working there. The appellant Bhupendra Singh was on duty and had a Rifle and cartridges and was on his beat. The appellant came inside the office and sat near Shri Ramzan Khan. Thereupon, Shafi Mond, asked him (Bhupendra Singh) to go and do his duty as Deputy Superintendent of Police and Superintendent of Police were in the town and they could come any moment. The accused-appellant went and started his beat. After sometime, Ramnarain saw the appellant near the gate of the office pointing his rifle towards Shafi Mohd. and also heard the noise of a gun shot Shafi Mohd. received the gun shot injury on his chest and cried. Accused Bhupendra ran away along with the rifle. Ramzan Khan chased him and wanted to apprehend the accused but was not successful and so he returned back to the office and thereafter, they took Shafi Mohd. to the hospital in a THELF where he was declared dead. Ramnarain made entry in the Roz-namcha (Ex P. 1 A) about this incident at 11.45 AM. The Dy. Supdt. of Police had gone out with the Station House Officer on some investigation and returned at 2.15 PM and thereafter, the regular FIR was chalked out at 2.15 PM (Ex. P. 29). A case was registered under section 302 and 379 IPC as also under section 3/25, Arms Act. 3. After investigation, the police submitted a challan and later, learned Magistrate, committed the case to the court of Sessions. Learned Sessions Judge, after holding the trial, convicted the appellant as aforesaid, and acquitted him of offence under section 379 IPC. 4. The defence of the appellant was that somebody else had fired at Shafi Mohd. 3. After investigation, the police submitted a challan and later, learned Magistrate, committed the case to the court of Sessions. Learned Sessions Judge, after holding the trial, convicted the appellant as aforesaid, and acquitted him of offence under section 379 IPC. 4. The defence of the appellant was that somebody else had fired at Shafi Mohd. and the appellant ran behind the person who had fired and that he could not do so and fired the gun shot on him which unfortunately did not hit that person. In support of his defence, he also examined one witness DW-1 Mahendra Kumar who has deposed that he had seen accused-appellant running behind a person who was running with a rifle in his hand, and the appellant fired on that person but the shot did not hit that person and he escaped. 5. We have heard learned counsel for the parties and have also perused the record of the case and the judgment of the learned trial court. 6. Learned trial court has placed reliance on two eye witnesses PW-1 Ramnarian and PW-3 Ramzan Khan as also recovery of gun from the accused and the cartridges from the place of the incident but has rejected the prosecution evidence regarding extra-judicial confession. The prosecution has not been able to prove any motive of the crime as there was no previous enemity between the accused and the deceased. Learned counsel for the appellant has very vehemently argued that the prosecution has utterly failed in proving its case beyond reasonable doubt. PW-1 Ramnarain and PW-3 Ramzan Khan who were alleged to be eye witnesses are both interested witnesses, and therefore, their evidence should be looked with caution. Moreover, Ram Narain has admitted in his statement that he had not seen accused firing the gun shot on the deceased. He had only seen the top of the gun coming out of the Gate and PW-3 Ramzan Khan was not present at that time. He has been introduced only with a view to get some support to the prosecution case. FIR is also concocted because it reached the Magistrate on the next day at 6.35 PM which was sent through a Special Massenger (Constable). PW-1 Ramnarain in his cross-examination has stated that there is no entry about the arrival of Ramzan Khan in the Rojnamcha of the Police Station. FIR is also concocted because it reached the Magistrate on the next day at 6.35 PM which was sent through a Special Massenger (Constable). PW-1 Ramnarain in his cross-examination has stated that there is no entry about the arrival of Ramzan Khan in the Rojnamcha of the Police Station. During those days, Ramzan Khan was posted at Dangipura Chowki and whenever any Constable arrives at a Police Station; on duty, there should be an entry of his arrival in the Roznamcha. There is no such entry about the arrival (Amad) of Ramzan Khan. He has further admitted that presence of Ramzan Khan has been recorded in Ex. P. 1A at the instance of Supdt. of Police. Though, in fact, he was not present. In his cross-examination, he has further admitted that he had not seen Bhupendra firing the gun shot but since he did not find Bhupendra in the police station, he thought that Bhupendra must have fired. He has also admitted that from the place where he was sitting, he could not see the person standing on the gate but he could see only the rifle. PW-3 Ramzan Khan has stated that he was posted at the Police Chowki Dangipura and he had left Dangipura on 28-5-1983 for the Police Station and thereafter, he had taken two days casual leave and then he made his attendance in the Police Station on 31-5-1983. We have also examined the Roz-namcha which is available on record of this case, from 1st June, 1983 and we do not find even the presence of PW-3 Ramzan recorded on any of the dates from 1-6-1983 till 3-6-1983 and even on 4-6-1983. Though, we find the names of Ram Narain and Shafi Mohd. on 3rd Juns, 1983. In view of this evidence, we are not inclined to believe that PW-3 Ramzan Khan was present or could be an eye witness to the incident, keeping in view of the above facts. 7. PW 1 Ram Narain has very specifically admitted that from the place where he was sitting, he could not see the person standing on the gate except the rifle. He has also admitted that he did not see Bhupendra Singh appellant firing the gun shot and it was only by inference that he has deposed that Bhupendra Singh must have fired the gun. He has also admitted that he did not see Bhupendra Singh appellant firing the gun shot and it was only by inference that he has deposed that Bhupendra Singh must have fired the gun. So in our view, Ramnarain is also not an eye witness who could have seen the accused Bhupendra firing the gun. Moreover, there is no motive and in the absence of any motive for the crime, burden is still heavier on the prosecution to prove the case beyond reasonable doubt. Having eliminated the eye witnesses, the only evidence against the accused appellant remains is that of recovery of gun at the instance of the accused and that of the pellet. Ex. P. 25 is the recovery memo of the pellet, dated 4-6-83, lying near the South-East wall of the Malkhana, and there is over-writing on it. It appears that date 3-6-83 has been changed to 4-6-83. But there is no endorsement on Ex. P. 25 that the pellet recovered from the spot was sealed. PW 17 Usman who was a recovery witness has been examined before the trial court, for the site plan memo and for recovery of blood stains from the spot. This exhibit has been later on marked as Ex. P. 28 in the trial court. He has stated in his cross-examination that the pellet was recovered from the spot and was having blood stains. He had pointed out this fact to the Station House Officer. Thereafter, the police people took that pellet in hand. He also took that pellet in his hand to see as to from which gun it could be fired. The pellet was recovered as soon as they started inspecting the site. It had also been taken in custody at the time when the police had taken the blood stains from the spot. This was so on the very day when the incident happened i e. 3-6-83, whereas both Ex. P. 26 (which has now been marked as Ex. P. 27) and Ex. P. 25 (later marked as Ex. P. 28) both bear the date 4-6 83. There is over writing in Ex. P. 25 (now marked as Ex. P 28) and date 3-6-83 has been changed to 4-6-83. This witness is not an ordinary witness because he was also employed with the police Department and later on he was dismissed. He visits Manohar Thana Police Station occasionally. P. 28) both bear the date 4-6 83. There is over writing in Ex. P. 25 (now marked as Ex. P 28) and date 3-6-83 has been changed to 4-6-83. This witness is not an ordinary witness because he was also employed with the police Department and later on he was dismissed. He visits Manohar Thana Police Station occasionally. He has denied the suggestion that the pellet was not sealed. When Ex. P. 25 (now marked as Ex. P. 28) was read over to him, he had to admit that there was no entry of the same regarding the sealing of the pellet. 8. Ex. P. 24 is the arrest memo of the accused, dated 3-6-83 at 3.50 PM. and Ex. P. 25, originally marked as Ex P. 22, is the recovery memo of gun alongwith the empty cartridge from the accused. Both these exhibits have been proved by PW-14 Ashfaq Mohd. who has stated that both these recovery memoes are signed by him and that the accused was arrested from a house of a Kahar and at that time, when he reached there the gate of the house was opened, the accused was standing outside in dress alongwith the rifle. The police took the rifile from him and took the accused to the police Station. He was declared hostile. On cross examination, he stated that the rifle or the empty cartridge was not sealed in his presence. 9. Prosecution has examined PW-11 Mangilal who was posted as Constable and had taken the various articles to the Director, Forensic Science Laboratory, Jaipur and has proved Ex. P. 11, the receipt for three sealed packets, dated 4-7-83, and also receipt Ex. P. 12 for 3 sealed packets on 7-7-83. In his cross-examination, he admitted that out of the packets he had handed over, on 4th July, 1983, three were returned for the reason that they were not properly sealed and out of them one packet was that of rifle. Along with Ex. P 11 and the three packets, they had also given their objections in writing but that has not seen the light of the day and the prosecution has suppressed that document. Thereafter he got those three packets sealed again and submitted again and obtained receipt Ex. P. 12. 10. Along with Ex. P 11 and the three packets, they had also given their objections in writing but that has not seen the light of the day and the prosecution has suppressed that document. Thereafter he got those three packets sealed again and submitted again and obtained receipt Ex. P. 12. 10. The prosecution has not examined any person of the Malkhana to show that he had received all the packets sealed and the seal remained intact till they were handed over to PW 11 Mangilal. In view of the fact that there is no mention regarding putting seal in Ex. P. 28, recovery memo of the pellet, and in view of the statement of PW 14 Ashfaq Mohd. that the rifle and the empty cartridge were not sealed in his presence and further in face of the evidence of PW 17 Usman Mohd, that the pellet was recovered on 3-6-83 itself, there is some over-writing in Ex P. 28 showing change of date from 3-6-83 to 4-6-83, this evidence also is of no avail to the prosecution and the accused is entitled to be given benefit of doubt. In face of the evidence of PW-8 Dr. Rajendra Jain who has deposed that the pellet should have blood stains and evidence of PW-17 Usman Mohd. who has stated that the pellet was blood stained, the prosecution has miserably failed to show that proper precautions were taken that the blood stains on the pellet were kept in fact and that pellet was properly sealed. In the present case, it is clear from the prosecution evidence itself that the rifle, empty cartridge and the pellet were not properly sealed and the Forensic Science Laboratory returned those articles as they were not properly sealed. Later on the police again sealed those articles and sent them to the Forensic Science Laboratory. Even if there would have been a ballastic report, it would have been of no avail. In this case, the accused is also a police Constable and deceased is also a police employee, and the investigation was conducted by an officer of the rank of Dy. Supdt. of Police, it was expected of the prosecution that it should be more careful and should take all the precautions to prove its case beyond any reasonable doubt but in our view the prosecution has miserably failed in bringing home the guilt to the accused. 11. Supdt. of Police, it was expected of the prosecution that it should be more careful and should take all the precautions to prove its case beyond any reasonable doubt but in our view the prosecution has miserably failed in bringing home the guilt to the accused. 11. In view of the facts mentioned above, we are of the opinion that the accused appellant is entitled to benefit of doubt. 12. This appeal is, therefore, allowed, the judgment passed by the trial court, convicting and sentencing the appellant, is set aside. The accused is in jail. He should be released forthwith, if not required in any other case.Appeal allowed. *******