JUDGMENT 1. 1. Accused appellant, Radharaman, stands convicted under Section 302 IPC and under Section 3/25 of the Arms Act. For the first offence, he has been sentenced to under go life imprisonment and to pay a fine of Rs.100/- (in default, further to undergo one month's Rl). And, under the latter offence, he has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.100/- (in default, further to undergo one month's Rl). Both the sentences have been ordered to run concurrently. 2. The facts of the case out of which this appeal arises are these: on 26th and 27th of October, 1984, in the town of Deeg (Bharatpur) a procession of Rambarat was being taken and in the night intervening of 26th and 27th October, 1984, at about 1 a.m. in the said Rambarat besides Ranveer Singh (deceased) many others membering about 400-500 persons were going and when it was near Bhudga Darwaja on Deeg-Bharatpur Road, it is alleged, accused appellant Radharaman while he was standing nearby an electric pillar fired at Ranveer Singh @ Ranno, who received gun shot injury on his back and fell on the ground. The occurrence is said to have been witnessed by Her Singh (PW-1), Nanak Chand (PW-2), Ashok Kumar (CW-1) and also by Sarman (PW-3), Sukhi Ram (PW-4) and Udai Singh-(PW-5). 3. Dr. R.S.Gupta (PW-6) conducted autopsy of the, dead-body of Ranveer Singh Ranno and he found the injuries as stated in Ex.P/3; as under: 1. A round lacerated wound 1.5 cm" in diameter with flet "scortched" margins and a zone of 5mm oh all sides blackening margins one scortched. Extending deep into pleural cavity (wound of entry.) (Note: A rent of almost equal size of wound present on corresponding part of the banian on the back of left side of chest along mid of medial border of the scapula.) 2. An irregular lacerated wound 2 cm" x 1 cm" extending into the Lt. special region pleural cavity just above and to the left of supra sternal motch margins are flat, act scorched. No surrounding blackening, skin is loose (wound of exit). 4. The doctor conducted autopsy on the dead body of the deceased and found gun shot injury entry as well as exit wounds. special region pleural cavity just above and to the left of supra sternal motch margins are flat, act scorched. No surrounding blackening, skin is loose (wound of exit). 4. The doctor conducted autopsy on the dead body of the deceased and found gun shot injury entry as well as exit wounds. The injury No. 1 was on the left side of back of chest and the wound of exist as not scorched and there was no surrounding blackening and was just above of supra sternal motch and according to the doctor the injury was caused by fire arm. In the opinion of the doctor he was dies as result of shock and haemorrhage because of extensive laceration of left lung laceration of left clevian artery due to gun what injury. 5. The deceased was taken to the hospital by Hem Singh (PW-1) and Nanak Chand (PW-2) near about 1.50 a.m. The SHO, on receiving the information, reached the hospital, Deeg, and there Hem Singh (PW-1) gave him report in writing (Ex.P/1) which was scribed by Balbir Singh (PW-8), It was sent by the SHO to the police station where a case was registered and the SHO remained in hospital to investigate the matter. The inquest report was prepared. The accused was arrested on 9-11-1984 and on 10-11-1984 he was in police custody and gave a voluntary statement that he would get a country-made-pistol recovered, Consequently, on his information (Ex.P/13) he took the SHO to the place mentioned in his information and got recovered the country-made-pistol alongwith empty cartridges and one live cartridesge. The aforesaid articles were recovered from the agricultural fields known as Sisamwala-tube-well and they were lying under the earth. The clothes of the deceased and blood smered soil were taken into possession from the spot and were sent to the Forensic Science Laboratory Rajasthan, Jaipur, where it was found that the blood smeared soil was stained with human blood. So far as the country-made-pistol which was recovered from the accused appellant as well as cartridge and one 12-bore empty cartridge are concerned, the report (Ex.P/23) of Forensic Science Laboratory is that it is not possible to line definitely one 12 bore cartridge with the pistol. Anyhow, one plastic wad from packet 'G' in the opinion of the ballistics expert, could have been fired from 12-bore cartridge case (C-1). 6. The accused thereafter was tried. Anyhow, one plastic wad from packet 'G' in the opinion of the ballistics expert, could have been fired from 12-bore cartridge case (C-1). 6. The accused thereafter was tried. Statements of the prosecution witnesses recorded. Thereafter, the statement of the accused appellant under Section 313 Cr.P.C. was recorded and not only the accused took stand of a bare plea of denial but also the accused denied the recovery of the country-made-pistol from him as well as other recoveries. The accused appellant examined Boop Narain Sharma (DW-1) Kesav Dev (DW-2), Man Singh (DW-3), Shyam Swaroop Gupta (DW-4) and Chet Ram (DW-5). It may be stated here that alongwith the accused appellant, Nangi S/o Prabhati was also tried but he was acquitted. 7. We have heard the learned Counsel for the accused appellant and we have also granted opportunity to the Public Prosecutor but unfortunately when the case was heard there was another Public Prosecutor and today Shri Bhargava has appeared as Public Prosecutor. Shri Bhargava has neither heard the arguments of the learned Counsel for the appellant nor is prepared to argue the case. We have asked Mr.Bhargava about Mr.Abdul Guffar who was present at the time of arguments and had appeared on last two dates and argued the case for State but Shri Bhargava was unable to secure his presence. This is a state of affairs and so far as State is concerned, in criminal cases we find no assistance from Public Prosecutors. Be that as it may, we have gone through the record of the case and we will proceed to dispose of the case. 8. It was contended by the learned Counsel for the appellant that as per the case of the prosecution, the motive of the crime is said to be that about 3 to 4 years ago, sister of the accused appellant had started living or had married with deceased Ranveer Singh @ Ranno without consent of the appellant and, therefore, the accused appellant was bearing ill-will against the deceased and, therefore, on the day of the incident he fired his country made- pistol at the deceased and caused his death. The learned Counsel contends that the aforesaid incident of the marriage of sister of the accused with the deceased is said to have taken place about 3 to 4 years ago and out of that wedlock, the sister of the accused had deltvered two children also and, therefore, the accused could not have continued to have any ill will on the day of the incident to as to cause the death of Ranveer Singh@ Ranno. Even thereafter, there could not have been any thing in the mind of the accused even if his sister married the deceased, against his will and the passage of time must have bridged, the relations and the cause, if any, must have come to an end. He, therefore, contends that in this case there was none and could not be any motive. It is further contention of the learned Counsel that the persons, who have professed to be eye witnesses, could not have witnessed the occurrence, The conduct of Hem Singh (PW-1) as well as Nanak Chand (PW-2) that they did not immediately after the occurrence narrate either to the doctor or anybody else that it was the accused who had fired at the deceased, is against normal human conduct and the possibility that for some other reasons may be of some impression; they might have named the accused when the deceased might have been killed by somebody else as he was a holigan having a bad character, cannot be excluded. Learned Counsel further contends that so far as Sukhi Ram, (PW-4) and Udai Singh (PW-5) are concerned, they were not and could not be eye witnesses. Sukhi Ram (PW-4), is the father of Hem Singh (PW-1) and if he would have been present in the procession of Rambarat, his name as well as name of Udai Singh PW-5) would have been mentioned as eye witnesses in the FIR lodged by Hem Singh (PW-1). The omission of the name of them were examined after about 14 days of the incident by the Dy.Supdt. of Police and the delay in the examination under Section 161 Cr.P.C, has now been explained, goes to show that they were not eye witnesses of the occurrence and Hem Singh (PW-1) has produced as eye witnesses. The omission of the name of them were examined after about 14 days of the incident by the Dy.Supdt. of Police and the delay in the examination under Section 161 Cr.P.C, has now been explained, goes to show that they were not eye witnesses of the occurrence and Hem Singh (PW-1) has produced as eye witnesses. Dealing with the other witnesses, namely, Hem Singh (PW-1), Nanak Chand (PW-2) and Ashok Kumar (CW-1), the learned Counsel for the appellant contends that their statements are full of contradictions in material particularly and, therefore, cannot be relied upon. 9. We will proceed to examine each and every statement in order to see as to whether all or any of them can be relied upon, or not? 10. First of all, we will take the statement of Sukhi Ram (PW-4) and Udai Singh (PW-5). We have already said that Sukhi Ram (PW-4) is the father of Hem Singh (PW-1). A bare reading of Ex.P/1 (FIR) will show that the names of these two witnesses are not mentioned therein. The first information report was lodged by Hem Singh(PW-1) and if his father Sukhi Ram (PW-4) would have present in the procession, the son must have noticed his presence and his name would have been mentioned in the FIR. The omission of the names of these two persons, namely, Sukhi Ram (PW-4) and Udai Singh (PW-5) in the FIR (Ex.P/1) is very important circumstances this case. No reason has been assigned by Hem Singh as to why the names of these persons were not mentioned in the FIR. That apart, each of these witnesses have been examined under Section 161 Cr.P.C. after about 14 days of the occurrence. A look at Ex.D/4 and Ex.D/5, statements of Sukhi Ram (PW-4) and Udai Singh (PW-5); respectively, recorded under Section 161 Cr.P.C, will show that the incident as said earlier, took place in the night intervening 26th and 27th of October, 84. The statements were recorded by Kan Singh (Dy. S.P.) who has not been produced by the prosecution and, therefore, the defence counsel for the accused appellant could not have cross-examined Shri Kan Singh and the delay in examination stands not explained. At any rate, the law is settled that the statements of the witnesses must have been recorded under Section 161 Cr.P.C. immediately after the occurrence or at any rate within a reasohable time. At any rate, the law is settled that the statements of the witnesses must have been recorded under Section 161 Cr.P.C. immediately after the occurrence or at any rate within a reasohable time. If the statements were not recorded, the prosecution must have explained the reason for such delay in examination of witnesses. In the instant case, no reason is forthcoming for recording the statements of the witnesses after 14 days of the incident. We will, therefore, exclude the statements of these two witnesses from consideration and we hold that these witnesses were not eye witnesses of the occurrence and have been produced lateron by the prosecution to support the other evidence of the prosecution. 11. Once, we exclude the aforesaid two statements, the only evidence remains against the accused appellant is of Hem Singh (PW-1), Nanak Chand (PW-2), Sarman (PW-3) and Ashok Kumar (CW-1). Hem Singh (PW-1), as said earlier, has lodged the first information report. Learned Counsel for the appellant and contended that the report, in fact, was not and could not be lodged at the time when it is said to have been lodged and as rightly pointed out by the learned Counsel, in the inquest report, when we try to see as to when the inquest report was prepared, then we find that the same is absent as the relevant column to state the time. Learned Counsel, therefore, contends that the reason is that the first information report has not actually been lodged at 2.45 a.m. when it is purported to have been lodged. A look at the statement of Hem Singh (PW-1) will show that he has made improvements in his statements qua the version given out in the first information report which was lodged by him. In the first information report (Ex.P/1), he said that when the procession of Rambarat reached at Bhuda Darwaja, from the side of an electric pillar nearby the house of Jhabbu Dhobi, the accused fired his country-made-pistol at Ranveer Singh @ Ranno and Ranveer Singh fell on the ground (sic). He further states in the FIR (Ex.P/1) that on the crossing, Man Singh who is the brother of the accused appellant was also standing. According to him, the occurrence was witnessed besides him Nanak Chand (PW-2) and Ashok Kumar (CW-1). He further states in the FIR (Ex.P/1) that on the crossing, Man Singh who is the brother of the accused appellant was also standing. According to him, the occurrence was witnessed besides him Nanak Chand (PW-2) and Ashok Kumar (CW-1). It will appear from the first information report as stated therein by Hem Singh (PW-1) that the deceased received gun shot injury and fell down on the ground. If we now come to the statement of Hem Singh recorded in the Court as PW-1, it appears to us that he states that from the side of Mali Mohalla, Radha Raman and Man Singh came towards the crossing and Nangi (alleged co-accused) was also standing there, Sukhi Ram and Udai Singh were also standing near them. Ha further states that Ranveer Singh @ Ranno had gone ahead of them about 10 or 12 stops and then the accused fired the gun by standing behind the elctric pole which was near the house of Bhudha pan Wala and Jhabbu Dhobi. After receiving the gun shot injury, the deceased ran away for his life and fell in the lane. He states that he has seen the accused running away with a ' katta'(pistol) in his hand. The deceased was in the hospital and doctor informed on telephone the police station about the same. It will appear from the statement that he introduced threee more persons, namely, Sukhi Ram, Udai Singh as also one more accused Nangi who was, as said earlier, also tried alongwith the accused but was acquitted. 12. We will deal with the other eye witnesses later on but it may be stated here that the other eye witnesses state that it was the other accused Nangi who was concealing himself with a cloth and wa carrying a pistol in his hand and it was he who had given the pistol to the accused appellant and then the accused appellant is said to have fired at the deceased though it has not been stated by Hem Singh (PW-1), but he states that it was the accused who was armed with the pistol and fired at the deceased. Though, in the first information report he has stated about the alleged motive of the commission of the crime but in his statement as PW-1 he does not state about any motive forth a commission of the crime. Though, in the first information report he has stated about the alleged motive of the commission of the crime but in his statement as PW-1 he does not state about any motive forth a commission of the crime. So far as the accused appellant is concerned, he admits that he has not disclosed the name of the accused, he admits that he has not disclosed the name of the accused as the assailant of the deceased to anybody in the hospital before the arrival of the police, though, he alongwith two or three persons of the Mohalla to which the deceased belonged, were present in the hospital. The normal human conduct, in our opinion, would have been that if he would have witnessed the occurrence and would have seen that the accused had fired at the deceased then to the persons who had arrived at the hospital, he would have disclosed the names of the accused as the assailant of the deceased. But, he remained silent till the arrival of the police and did not disclose the name immediately of his reaching the hospital either to the doctor or to the persons of the locality to which the deceased belonged, who had arrived at the hospital. It will appeer from a perusal of the site plan (Ex.P/2) as well as from the statement of Virendra Singh (PW-16) that the deceased was lying at point 'A' and it was at the distance of about 45 steps from the house of Bhudda Pan Wala. The possibility that it was not stated by PW-1 that the deceased after receiving the gun shot injury had ran to a certain distances and then fallen on the ground so as the support Ex.P/2, cannot be excluded. It will appear from a perusal of Ex.D/B as well as Ex.D/9 the documents under which the deceased was admitted in the hospital, that the deceased was admitted at 1.45 a.m. and expired at 2.05 a.m. He had been brought in the hospital by Nanak Chand (PW-2). It will appear from a perusal of Ex.D/B as well as Ex.D/9 the documents under which the deceased was admitted in the hospital, that the deceased was admitted at 1.45 a.m. and expired at 2.05 a.m. He had been brought in the hospital by Nanak Chand (PW-2). There in no dispute as to the version given out in Ex.D/6 and marked as " C to " D' "gun shot injury at about 1.30 a.m. on 27-10-1984 by an unknown persons while Rambarat was moving." No doubt, it is also mentioned in Ex.D/6 that Nanak Chand who had brought the deceased to the hospital gave out that the deceased had been shot by Radha Raman S/o Raja Ram due to old jealousy. Dr.R.S.Gupta (PW-6) was cross-examined on this point of the matter that when the deceased was got admitted in the hospital he had not died but was in a precarious condition. He also states that in the patients indoor ticket he had made the aforesaid entry that he had been shot by unknown person at the bebest of many persons who had brought the injured in the hospital. �Ex.P.6/ c islsUV dk bUMksj fVdV gS ftlls e`rd dks tkuus okys vf/kdrj O;fDr;ksa us crk;k fd jke cjr ds le; fdlh O;fDr us bl ij xksyh pykbZ rHkh ukud pUnz iq= Jh xksih pUnz] mez 18 lky fuoklh HkwM+k njoktk] Mhax] us crk;k fd xksyh Jh jk/kkje.k iq= Jh jktkjke mez yxHkx 19 lky] fuoklh HkwM+k njoktk us fdlh iqjkuh jaft'k dh otg ls pyk;hA HkhM+ esa ls ihNs fudy dj ukud pUnz vk;k o mlus dgk tks eSuas fy[k fn;kA " 13. We have already said that Hem Singh (PW-1) has admitted that when he reached the hospital there were other persons of the locality Mohalla to which the deceased be-longed and he had not told to them that it was the accused who had shot the deceased. When the aforesaid endorsement ' C to ' D' in Ex.D/B is read in the light of the statement of Hem Singh (PW-1), it can be said that Hem Singh, on reaching the hospital, did not immediately disclose the name of the accused as the assailant either to the doctor or to the other persons who had assembled there. When the aforesaid endorsement ' C to ' D' in Ex.D/B is read in the light of the statement of Hem Singh (PW-1), it can be said that Hem Singh, on reaching the hospital, did not immediately disclose the name of the accused as the assailant either to the doctor or to the other persons who had assembled there. Even Nanak Chand (PW-2), whose evidence we will deal with at later stage, did not immediately disclose the name of the accused but only after the doctor had written in Ex.D/6 (indoor patient ticket) that some unkown parson had killed him or shot him and that Nanak Chand came with him, he disclosed the name of the accused as the assailant. At any rate, it can be said that the name of the accused was not disclosed in the hospital immediately when he was referred to in the hospital in a precarious condition and was given out by some others who were present and who had also taken him to the hospital who said that some unknown persons had caused injuries to him, 14. Therefore, we are of the opinion that so far as Hem Singh (PW-1) is concerned, he made improvements and introduced him own father Sukhi Ram (PW-4) as witness and also introduced Nangi as an accused and he does not state as stated by other the Nangi alleged co-accused had given that pistol to the accused appellant and then the accused shot the deceased. It goes to show that at that hour at. 1.00 a.m. Hem Singh actually did not witness the occurrence and has named the accused as assailant on some other impression because of the alleged, enmity; because the alleged motive which, as said earlier,' he has not stated in the court and which otherwise does not appear to us as the motive which could not have led to this crime, moreso when the witness has stated that there was no enmity at the time of the incident in between the deceased and the accused. 15. Coming to the statement of Nanak Chand (PW-2), it may be stated here that he does not state that actually he saw the accused firing with country-made-pistol at the deceased. 15. Coming to the statement of Nanak Chand (PW-2), it may be stated here that he does not state that actually he saw the accused firing with country-made-pistol at the deceased. If Hem Singh (PW-1) nad Nanak Chand (PW-2) were together in the procession of Rambarat and if the accused would have fired, both of them should have witnessed the accused actually firing at the deceased and should have given a consistent statement on that material point. Nanak Chand (PW-2) states that when the procession of Rambarat reached near the house of Bhudda Pan Wala and Jhabbu Dhobi, he saw that Nangi and Radha Raman were standing there. Nangi had covered himself with a shawl and he (Nangi) took out a "katta" and gave it to Radha Raman (accused appellant) and said that he should do his job (sic) He further states that he (Nanak Chand) could not understand as to what Nangi said and that they i.e. he, Hem Singh and one more, were grappling with each other and all of a sudden there was a gun shot fire and he saws Nangi and Radha Raman running towards the crossing (chouraha) and Radha Raman was armed with a gun in his right hand. In cross-examination, he stated that Hem Singh is the nephew of deceased Ranveer Singh @ Ranno. It may be stated here that on persistant cross-examination, Hem Singh denied of any relationship with deceased Ranveer Singh @ Ranno. He (Nanak Chand) stated that the father's name of Hem Singh is Sukhi Ram. The mother of Ranno (deceased) and Sukhi was one but the father were different. Earlier, mother of Ranno (deceased) had married to Nihal Singh but after the death of Nihal Singh, she married with her brother-in-law (dewar), Ram Karan and Ranno (deceased) is the son of Ram Karan. We will fail to understand as to why Hem Singh tried to conceal this relationship with the deceased when there was such relationship of deceased with Hem Singh. He (Nanak Chand) states that he does not know as to who had actually fired from the "katta' but the normal the gun shot and after it, he had seen a 'katta' in the hand of Radha Raman who was at a distances of 8 to 10 steps from him at the time whom the ' katta' was fired. He (Nanak Chand) states that he does not know as to who had actually fired from the "katta' but the normal the gun shot and after it, he had seen a 'katta' in the hand of Radha Raman who was at a distances of 8 to 10 steps from him at the time whom the ' katta' was fired. He admits that there is no other person by-name of Nanak Chand in the Mohella. It is also admitted by him that about 4 and 5 years ago, he had filed a complaint against Raja Ram and others and that Raja Ram is the father of the accused appellant (Radha Raman). But, according to him, that case did not proceed further and came to an end. It will, therefore, appear that so far as this witness is concerned, there was some criminal case filed by him against the father of the accused appellant and, therefore, this witness cannot be said to be an independent. He states that besides him, Hem Singh and Ashok Kumar had heard the other accused uttering of the accused appellant "(sic)" But, Hem Singh had not stated any such thing and at any rate, does not say so. He states that before this occurrence there was some enmity in between Ranno (deceased) and Radha Raman (accused) but he is unable to say as to whether it was in existence them or not. It will, therefore, appear from the statement that he introduced Nangi as an accused even to the extent saying that he had covered with a shawl and was armed with a ' katta' and had given the ' katta' to the accused appellant after uttering the words that he should do his job. His story is completely a different story than one stated by Hem Singh (PW-1). He has confronted with his police statement (Ex.D/18) and version stated therein and marked as 'A' to 'B'. whereas he has not stated that Nangi had uttered any words as alleged by him, in the court. We are unable to place any reliance on his statement. 16. PW-3 is Sarman. He was carrying a gas on his head, said to have been engaged as labour by deceased Ranno for that purpose. whereas he has not stated that Nangi had uttered any words as alleged by him, in the court. We are unable to place any reliance on his statement. 16. PW-3 is Sarman. He was carrying a gas on his head, said to have been engaged as labour by deceased Ranno for that purpose. Though he has stated in the court that he was running fast to Ranno in procession and when he reached in front of the house of Dhobi, Ranno was hit and he saw Radha Raman running away. But he was confronted with his police statement (Ex. D/3) as he did not state so therein. In the statement (Ex. D/3), in a portion 'C' & ' D', he only stated that it was Ranno who said that Radha Raman S/o Raja Ram was running away after shooting him. He did not state so in his statement that he himself had seen the accused running away. Therefore, his statement that he has been the accused, cannot be relied upon. 17. The last witness, who remained to be seen is Ashok Kumar (CW-1). He states that when the procession of Rambarat reached, somebody fired at Ranno. He is unable to say as to who had fired at Ranno. He has made a categorical statement that he has not seen the accused firing at the deceased. 18. We are of the opinion that the evidence of the above witnesses is such upon which reliance cannot be placed for the reasons already stated, and the leanred trial Court was not correct when it relied upon their statements. Ranno was having a few of criminal cases pending against him. There was no motive so far as accused appellant is concerned for the commission of the impugned crime. So far as the offence under Section 3/25 of the Arms Act is concerned, all that we may state, is that the recovery is doubtful, and that when the accused has not been held guilty for the main offence for having used that weapon in the commission of the crimem it will not be proper to uphold his conviction under Section 3/25 of the Arms Act. 19. Consequently, we hereby allow this appeal and set aside the Judgment dated 23rd July, 1990 of the learned Additiona District & Sessions Judge, Deeg (Bharatpur). 19. Consequently, we hereby allow this appeal and set aside the Judgment dated 23rd July, 1990 of the learned Additiona District & Sessions Judge, Deeg (Bharatpur). We acquit the accused of the charge under Section 302 IPC and 3/25 of the Arms Act. The sentences awarded are also set aside. The accused is in jail, He shall be released forthwith, if not wanted in any other case.Appeal allowed. *******