JUDGMENT 1. - This appeal has been filed against the judgment of the learned Additional Sessions Judge, Raisinghnagar dated April 30, 1988 by which he has convicted the accused appellant Ram Pratap under section 302, IPC and Section 27, Arms Act and sentenced him to undergo imprisonment for life and rigorous imprisonment for six months and to pay fine of Rs. 200/- respectively and the accused-appellant Rameshwer Lal under section 302 read with Section 34, IPC and sentenced him to imprisonment for life. The facts of the case may be summarised thus. 2. On October 2, 1986 at 6 a.m PW 5 Lakhu Ram Vishnoi resident of Dhani Chak of 4 S.A.D. (Malsar) lodged First Information Report Ex P 15 in the Police Station, Maklawa (Raisinghnagar), Sri Ganganagar. The facts of the case may be summarised thus. 2. On October 2, 1986 at 6 a.m PW 5 Lakhu Ram Vishnoi resident of Dhani Chak of 4 S.A.D. (Malsar) lodged First Information Report Ex P 15 in the Police Station, Maklawa (Raisinghnagar), Sri Ganganagar. It runs as under: " vkt fnukad 2&10&86 ds le; 6 ,0,e0 ij Jh y[kwjke iq= jketl tkfr fc'uksbZ mez 65 lky is'kk [ksrh fuoklh <+k.kh pd 4 ,l0,0Mh0 jksgh ekstk ekylj us gkftj Fkkuk gksdj tqckuh lwpuk nh fd esjs lkr yM+ds gS ftuesa ls ikap yM+ds esjs lkFk jgrs gS ,d yM+dk vkseizdk'k esjs ls vyx esjh <+k.kh ds fiNyh rjQ ds edku esa jgrk gS o ,d yM+dk txeksgu 10 th0ch0 esa jgrk gS esjh tehu esa ikuh Kkuizdk'k o vkseizdk'k dh tehu esa ls gksdj vkrk gS vjlk djhc 2 lky igys Kkuizdk'k vkseizdk'k us esjh ckjh dk ikuh jksdk Fkk ftl ij eSaus fot; uxj Fkkuk esa buds f[kykQ eqdnek djok;k Fkk vkSj esjk yM+dk ekgkohj tSrlj ls vjlk djhc ,d lky igys <+k.kh dks vk jgk Fkk dks jkLrk esa jkes'oj o jkeizrki vkfn us ekjihV dh ftldk eqdnek eSaus Fkkuk fot;uxj esa djok fn;k bu nksuksa eqdnekr esa esjs o Kkuizdk'k vkseizdk'k ds feyus tqyus okys fj'rksnkjksa us chp cpko djds vnkyrksa esa jkthukek djok fn;k ysfdu jkes'oj o jke izrki ds eu esa esjs yM+ds ekgkohj ds izfr jaft'k jgh esjk yM+dk f'kodqekj ftlds visafMDl dh fcekjh dk bykt bUnzk vLirky jk;flaguxj esa gks jgs gS ftlds ikl fuxjkuh okLrs esjk yM+dk jkedqekj gS bu nksuksa ds fy, dHkh esa] dHkh ekgkohjk [kkuk ?kj ls ys tkdj jk;flaguxj jkstkuk f[kykdj okfil vkrs tkrs gS dy 'kke dks 7 cts dh xkM+h ls esjk yM+dk ekgkchj nksuksa ds ysdj jk;flaguxj x;k vkSj mudks [kkuk f[kykdj jkf= 10 cts okyh xkM+h ls jokuk gksdj djhc lk<+s 11 cts <+k.kh igaqpk rc eSa ekgkchj ds iSjksa dh vkokt ls tkxk vkSj ns[kk rks ekgkohj Fkk eSaus dgk f'kodqekj dh gkyr dSlh gS rks ekgkchj us crk;k gkyr Bhd gS blds ckn ekgkchj <+k.kh ds ckgj dh vksj ds dejk ds vkxs cuh pkSdh ij pkjikbZ Mky dj ysV x;k blds ckn esjh HkSalksa ds ikl nkxy >ksVk vk x;k >ksVs dks Hkxkus ds fy, ekgkchj djhc lk<+s ckjg cts mB dj x;k FkksM+h nsj ckn esjh <+k.kh dss fiNs ls xksyh pyus dh vkokt vkbZ rc eSa Hkkx dj <+k.kh ds fiNs igqapk vkSj ns[kk rks ekgkchj tehu ij fxjk iM+k Fkk mlds ikl esjk yM+dk vkseizdk'k Hkh cSBk Fkk eSaus iwNk D;k ckr gS rks bl ij ekgkchj us crk;k fd eSa >ksVs dks fudkyus ds fy, HkSalksa dh rjQ tk jgk Fkk rks jkes'oj iq= vkseizdk'k fc'uksbZ fu0 pdz 3 ,l0,0Mh0 jksgh eky lj o jkeizrki iq= Kkuizdk'k fc'uksbZ fuoklh elk.kh <+k.kh dh fiNyh rjQ dqaV ij [kM+s Fks jkes'oj ds gkFk esa cUnwd o jkeizrki ds gkFk esa fiLrksy Fkh eSaus muds ikl tkdj dgk ;gka D;ksa [kM+s gks ml ij jkeizrki us fiLrkSy dh xksyh esjs isV esa ekj nh o Hkkx x, vkseizdk'k mudks idM+us ds fy, fiNs tkus yxk eSaus euk dj fn;k blls esjk yM+dk i`Foh o gekjs ?kj ds lkjs bDVBs gks x, i`Foh o vkseizdk'k us ekgkchj dh pksV ij xeNk cka/k fn;k fQj eSa vkse&i`Foh&euhjke&ekgkchj dks euhjke ds V~sDVj esa Mkydj jk;flaguxj vLirky dh rjQ jokuk gq, jkLrk esa jk;flaguxj ds utnhd igqaprs gh ekgkchj ej x;k ekgkchj dh yk'k ljdkjh vLirky jk;flaguxj esa ys x, MkWDVj dks fn[kk;k rks MkDVj lk0 us crk;k fd ;g [kRe gks pqdk gS blfy, eSa ekgkchj dh yk'k vLirky esa NksM+ dj bryk nsus vk;k gwa ekSds ij 5&6 dkjrwl Hkh iM+s gS bryk nsrk gwa dk;Zokgh dh tkosA " Thereon, a case under sections 302 and 34, IPC and Sections 25 and 27, Arms Act was registered & investigation was commenced. During the investigation, the site plan Ex.P 1 & site inspection note Ex.P 1A were prepared, 7 live cartridges were recovered from the place of occurrence through recovery memo Ex P 2, shirt and under-wear of the deceased Mabavir were recovered through recovery memoes Ex.P 3 and PW 4, one cloth bandolier containing one live cartidge was recovered through recovery memo Ex.P 16, from the fed body of the deceased Mahavir, inspection note Ex.P 5 and Panchayat-Bira Ex.P 6 of dead body were prepared, the accused Ram Pratap and Raeshwarlal were arrested on October 8, 1986 through arrest memos Ex.P7 & P 8, the accused Ram Partap gave information Ex.P 7 for the re- cover of a pistol and in pursuance thereof he got recovered a pistol through recovery memo Ex P 10. Licenced 12 bore gun & carteridges were recovered the possession of the co-accused Om Prakash through recovery memo Ei.F 13, the post-mortem examination of the dead body of Mahavir was conducted by Dr. Mahavir Prasad Agrawal PW 4 and he prepared post-mortem report Ex.P 14. After completing the investigation, challan was filed against tie accused-appellants and co-accused Om Prakash in the court of the Munsif cum Judicial Magistrate, Raisinghnagar who committed them to the court of Additional Sessions Judge, Raisinghnagar. The accused Om Prakash was discharged. Charges were framed against the accused-S appellants The prosecution examined the informant and father of the deceased Mahavir, Lakhuram PW 5, Lakhu Ram's sons Om Prakash PW 6 : and Prithvi Raj PW 7 as eye witnesses, attesting witnesses Om Prakash PW and Sohanlal PW 3 Dr. Mahavir Prasad Agrawal PW 4, Malkhana Incharge Harbans Singh PW 2 and the investigating officer Rajpal Singh PW 8. The accused appellants denied the prosecution story except their arrest in their statement recorded under section 313, Cr. PC. The accused Rameshwarlal has stated that during the night Mahavir was murdered, he was irrigating his field. The accused Ram Pratap has stated that Kalu Singh @ Harmal Singh Jat Singh resident of Masani was detained by the police in connection with the murder of Mahavir. The accused Rameshwar Lal produced Hari Ram DW 1 and Nihal Chand DW 2 in support of his said defence. After hearing the learned counsel for the parties, the learned trial court convicted and sentenced the accused-appellants as said above. 3. The accused Rameshwar Lal produced Hari Ram DW 1 and Nihal Chand DW 2 in support of his said defence. After hearing the learned counsel for the parties, the learned trial court convicted and sentenced the accused-appellants as said above. 3. It has been contended by the learned counsel for the accused-appellants that the prosecution story that the deceased Mahavir went to the place of occurrence in the mid-night on hearing the voice of a she-buffalow is highly improbable Mahavir was admittedly shot dead during Amavasya night, there was no source of light at or near the place of occurrence and the deceased Mahavir could not have identified his assailants. He further contended that the deceased Mahavir would have stanteneously denied as a consequence of serious injuries received by him, he could not even raise hue and cry and as such there was no question of his telling any thing about the occurrence to his father Lakhu Ram PW 5 and his brother Om Prakash 1 PW6. He further contended that the prosecution has utterly failed to B prove as to how a cloth bandolier containing 7 live cartridges was found tear the dead body and an adverse inference should be drawn against the prosecution for not producing the report of the ballastic expert despite B sending the pistol and spent and live cartridges to him. He also contended that Lakhu Ram PW 5, Om Prakash PW 6 and Prithvi Raj PW 7 have been produced as eye witnesses of the occurrence but on careful scruitiny of the prosecution evidence it is clear that they were not the eye witnesses of the occurrence. He further contended that there is a great variance in between the FIR Ex.P/15 and the statements of Lakhu Ram PW 5, Om Prakash PW 6 and Prithvi Raj PW 7. He lastly contended that admittedly relations r between the parties had been strained prior to the occurrence and on V account thereof the accused appellants have falsely been implicated ' in the case. 4. The learned counsel for the complainant and the learned Public Prosecutor duly supported the judgment under challenge. In their arguments, they reiterated the points which have been given by the learned trial court in support of its conclusion 5. 4. The learned counsel for the complainant and the learned Public Prosecutor duly supported the judgment under challenge. In their arguments, they reiterated the points which have been given by the learned trial court in support of its conclusion 5. The first question for consideration in this appeal is whether Lakhu Ram PW 5, Om Prakash PW 6 and Prithvi Raj PW 7 saw the assailants near the place of occurrence. It is not mentioned in the FIR Ex. P/15 that Lakhu Ram PW 5, Om Prakash PW 6 and Prithvi Raj PW 7 saw the assailants near the place of occurrence or running away therefrom, Lakhu Ram PW 5 has not disclosed in his statement on oath that he himself saw the accused-appellants either standing near the place of occurrence or running therefrom. He has simply deposed that on hearing the sound of gun shot he went towards the place of occurrence and on his inquiry the injured Mahavir (deceased) told him that the accused-appellant Ram Pratap has shot him and the accused Rameshwar Lal was having a gun and they had run away. He has further deposed that his son Om Prakash PW 6 was having a torch and he was stopped while he was going to chase the assailants. Om Prakash PW 6 has deposed that he was sleeping in his house, during the mid night he heard the sound of gun shot, he proceeded towards it with a torch, Mahavir was lying injured on the ground, the accused appellants Ram Pratap and Rameshwarlal were standing near him armed with pistol and gun respectively and they ran away when he threw torch light on them. In his cross-examination, he disclosed that neither he told anything to the accused-appellants nor they told him and they did not attempt to fire shot towards him. It is not mentioned in the FIR Ex P/4 that Om Prakash PW 6 was having a torch in his hand at that time. In his cross-examination, he disclosed that neither he told anything to the accused-appellants nor they told him and they did not attempt to fire shot towards him. It is not mentioned in the FIR Ex P/4 that Om Prakash PW 6 was having a torch in his hand at that time. Prithvi Raj PW 7 has deposed that during the night of occurrence he was sleeping in the 'Angan' of his house, at about 12.30 A.M. he heard the sound of gunshot fire and proclamation of Mahaveer MAR DIYA MAR DIYA', he immediately went there, he saw his father Lakhu Ram PW 5 and brother Om Prakash PW 6 standing there, Om Prakash PW 6 told-him that he saw the accused appellants running away in the light of torch and his father inquired from Mahavir as to who has fired him and the latter told that the accused appellant Ram Pratap had fired shot from his pistol and accused appellant Rameshwar Lal was accompanying him armed with the gun. He has further deposed that after about 7-8 minutes Mahaveer became unconscious. Similarly, Om Prakash PW 6 has deposed that Mahaveer became unconscious after 5-10 minutes of receiving injuries. If Om Prakash PW 6 had seen the assailants running away in the light of his torch, his father Lakhuram PW 5 would not have asked Mahaveer (deceased) as to who had fired shot upon him. 6. It is not in dispute that the deceased Mahaveer was knowing the accused-appellant Ram Pratap and Rameshwarlal prior to the occurrence. If he would have identified them, he would have named them while raising hue and cry There is no such evidence on record. On the contrary, Prithvi Raj PW 7 has simply deposed that Mahavir proclaimed 'MAR DIYA MAR DIYA'. At the risk of repetition it may be mentioned that the night of the occurrence was an Amavasya night and there was no source of light at or near the place of occurrence. 7. It is very much doubtful that the injured Mahaveer ramained conscious by the time his brothers Om Prakash PW 6 and Prithvi Raj PW 7 and father Lakhu Ram PW 5 reached there. Dr Mahavir Prasad Agrawal PW 5 has deposed that the injured Mahaveer might have become unconscious immediately after receiving gun shot injuries. Dr. Agrawal PW 4 has deposed that according to his post-mortem report Ex. Dr Mahavir Prasad Agrawal PW 5 has deposed that the injured Mahaveer might have become unconscious immediately after receiving gun shot injuries. Dr. Agrawal PW 4 has deposed that according to his post-mortem report Ex. P/4 the cause of death was intra-abdominal haemorrhage and shock leading to cardian and respiratory failure as a result of performation and laceration of greater omentum and ilium with injury to vessels caused by gun shot injuries. The report further shows that 25 small pallets and one cork piece were removed from the abdominal cavity during the post-mortem examination. The report further shows mark of charring and tattooing on the injuries. The shirt of the deceased also corroborated it vide recovery memo Ex.P/3. It shows that firing was done from close range. 8. Om Prakash PW 6 says that he saw the accused-appellants near the injured Mahaveer armed with gun and pistol and they ran away when he flashed torch light on them. This statement does not inspire confidence. It is not clear as to why the accused-appellants remained standing even after Mahaveer fell down on the ground after receiving injuries. 9. Prithvi Raj PW 7 admits in his cross-examination that neither his brother Om Prakash PW 6 nor he told his father Lakhu Ram PW 5 that they saw the accused-appellants running away from the place of occurrence ID the light of the torch of Om Prakash. He also disclosed that Mahaveer did not tell the name of the assailants. Admittedly, they are highly interested witnesses being father and brothers of the deceased Mahaveer. In view of these facts and circumstances, it cannot be said with certainty that Lakhu Ram PW 5, Om Prakash PW 6 and Prithvi Raj PW 7 saw the accused-appellants running away after injuring Mahaveer. 10. The prosecution has failed to connect the accused-appellants J with the said crime Admittedly, 7 live cartridges were recovered from the place of occurrence through recovery memo Ex.P/2 of the following descriptions; 1. 5 cartridges were bearing No. 4-4-4 and having mark KF No. 12-12 special; 2. 2 cartridges were bearing No. 1-1-1 and having mark of KF No. 12-12 special. One cloth bandolier was also recovered from the place of occurrence having one live cartridge bearing No. 1-1-1 and mark KF No. 12-12 special. 5 cartridges were bearing No. 4-4-4 and having mark KF No. 12-12 special; 2. 2 cartridges were bearing No. 1-1-1 and having mark of KF No. 12-12 special. One cloth bandolier was also recovered from the place of occurrence having one live cartridge bearing No. 1-1-1 and mark KF No. 12-12 special. The prosecution case is that one pistol along with one empty cartridge 12 bore was recovered at the instance of the accused Ram Pratap and recovery memo Ex. P/10 was prepared. The empty cartridge was bearing mark KF special long range cartridge made in India. The live cartridges found at the place of the occurrence and with the said bandolier do not have the similar marks. The words "LONG RANGE CARTRIDGE MADE IN INDIA" do not appear on them. It is the prosecution case that the said live cartridge, empty cartridges, 25 small pallets, one cork piece removed from the abdominal cavity of the deceased and 12 bore pistol recovered at the instance of the accused Rampratap were sent to the Forensic Science Laboratory, Rajasthan, Jaipur. It is stated in the challan that its report would be filed soon after it is received Admittedly, report of the Forensic Science Laboratory has not been filed As adverse inference can well be drawn against the prosecution. 11. A perusal of the statements of Lakhu Ram PW 5, Omprakash PW 6 and Prithviraj PW 7 shows that they are repelte with material contradictions and discrepancies. There is also a great variance in between the FIR Ex P/15 and these statements. It is not mentioned in the FIR that Om Prakash was having torch in his hand. Lakhu Ram PW 5, Om Prakash PW 6 and Prithviraj PW 7 saw the assailants either standing near the injured Mahaveer or running away therefrom and a cloth bandolier was found near the injured Mahaveer. The prosecution story is that the accused-appellants were standing near the place of occurrence armed with gun and pistol when she buffalow of Lakhu Ram PW 5 made stir and Mahaveer went there. It has been made clear as to how the accused-appellants could anticipate the lone arrival of the deceased Mahaveer near the she buffalow at that time when there were several other inmates in the house of the complainant Lakhu Ram PW 5. It has been made clear as to how the accused-appellants could anticipate the lone arrival of the deceased Mahaveer near the she buffalow at that time when there were several other inmates in the house of the complainant Lakhu Ram PW 5. It is correct that there had been strained relations in between the parties for about a year. During this period of one year, no untoward incident happened. Compromise had taken place in between the parties on the intervention of mediators. There is nothing on the record to indicate as to what prompted the accused-appellants to come armed with fire arms at the place of occurrence during that night. 12. Item No. 23 of site plan Ex. P/1 and site inspection Note Ex. P/1 A shows the presence of Mst. Bholi in her house. The prosecution witnesses Lakhu Ram PW 5, Omprakash PW 6 and Prithvi Raj PW 7 have disclosed her presence during that night near the place of occurrence in their police statements Ex. D/1, D/2 and D/3 respectively. According to the site plan Ex. P/1, her hut was quite near to the place of occurrence. An adverse, inference can be drawn against the prosecution for not producing her. No independent witness has been produced by the prosecution in this case. 13. In view of these facts and circumstances, it would not be 5 safe to endorse the views of the learned trial court that the accused- appellants murdered the deceased Mahaveer. The appellants deserve acquittal. 14. Accordingly, the appeal is allowed. The conviction and sentence of the accused appellants Rampratap and Rameshwarlal are set-aside The accused-appellant Rameshwar Lal is already on bail. The accused appellant Rampratap will be released forthwith, if not wanted in any other case.Appeal allowed. *******