JUDGMENT 1. 1. Vide judgment & order dated 18.10.1996 the learned Additional Sessions Judge, Gangapur City, in Sessions Case No. 50/94, held the present appellant guilty of the offence under Section 302 IPC convicted him as such and sentenced him to imprisonment for life and also to pay the fine of Rs. 1,000/- or in case of default to further undergo RI for 3 months. 2. Briefly stated the relevant facts are that on 26.3.1994 P.W. 4 Mohan Singh resident of Gangapur City reported to the police that on the last evening i.e. on 25.3.1994 at about 8.00 PM. P.W. 1 Hemant Kumar Pediwal had come to his shop and taken his son Bhupendra Singh with him. After sometime, P.W. 1 Hemant Kumar again came to the informant and informed him that Bhupendra Singh had been murdered by some unknown persons and that Bhupendra Singh was lying in the hospital. 3. On the report lodged by Mohan Singh, Crime No. 152/94 under Section 302 IPC was registered at Police Station Gangapur City by PW. 17 Amarchand, SHO, Police Station Gangapur City. 4. Here, it may be pointed that the police had come to know of the fatal injuries caused to Bhupendra Singh deceased during the early hours of the night It is the prosecution case and such a case comes out clearly from the evidence on record that the incident, wherein Bhupendra Singh deceased is stated to have sustained fatal injuires, lies in the School ground. Since the answer books were to be examined at school premises, a number of RAC personels were staying in a room of the institution. Since it was also the occasion of Holi Festival, other members of the party were staying in the premises occupied by the Panchayat Samiti which was situated close to the school premises. At about 9.00 or 9.30 P.M. P.W. 2 Brijkishore, Head Constable who was staying in the room alongwith P.W. 3 Rampratap, Suman and other Constables belonging to the RAC, heard some noise coming from the play ground of the school. He opened the window and looked outside. He was however, of the opinion that since it was the occasion of Holi some boys might have fired the Crackers. He opened the window and looked outside. He was however, of the opinion that since it was the occasion of Holi some boys might have fired the Crackers. But after sometime a stone was thrown at the window and thereupon P.W. 2 Brijkishore asked his subordinate P.W. 3 Rampratap and Suman Constables to go and see as to what was happening in the school ground. The school ground lay in the rear portion of the building of the school. When Rampratap and Suman Constables went behind the room they noticed a man lying on the ground and two boys standing near him. When Rampratap and Suman reached there one of the boys grappled with him and raised an alarm. The constables freed themselves and returned to their rooms. On instructions of Brijkishore, Rampratap went to police station where he reported the incident to P.W. 17 Amarchand, Station House Officer, who deputed his Deputy P.W. 18 Sapat Khan to go to the school premises and make enquiries there. The police party thus reached the school premises and in the play ground the party found the injured Bhupendra Singh lying on the ground. The police party took the injured to the hospital and asked the medical attendant P.W. 13 Dr. Mohanlal Sharma to examine and treat him. Meanwhile, a number of persons including close relations of Bhupendra Singh had gathered at the hospital. On examination of Bhupendra Singh alias Babal,. P.W. 13, Dr. Mohanlal Sharma noticed the following injuires on his persons - 1. Multiple Punctured wounds scattered over an interior side of left chest wall 2. Lacerated wound 2" x 1/2'1 x 1/2'' on outer part of left eye brow. 5. Bhupendra Singh succumbed to his injuries at about 11.30 PM. during the same night. On conducting the postmortem examination on the dead body of the deceased, P.W. 13 Dr. Mohanlal Sharma found multiple punctured wound in the left lung of the deceased and a number of pallets were also there. Some pallets were also found present in the heart of the deceased. In all 23 pallets were recovered from the injuries of the deceased and were duly seized and sealed by Dr. Mohanlal Sharma. Dr. Sharma was of the opinion that cause of the death of deceased was shock due to gun shot injuries having been caused to the vital organ by piercing left lung and heart of the deceased. In all 23 pallets were recovered from the injuries of the deceased and were duly seized and sealed by Dr. Mohanlal Sharma. Dr. Sharma was of the opinion that cause of the death of deceased was shock due to gun shot injuries having been caused to the vital organ by piercing left lung and heart of the deceased. 6. There is yet another version of the prosecution regarding the incident. Such a version has been advanced by P.W. 1 Hemant Kumar. According to Hemant Kumar on the fateful day when he was going to Sindhi Colony, opposite the Rest House, he met Bhupendra Singh deceased who asked him as to why he (Hemant Kumar) was feeling annoyed at him. At that time one Viri Singh the Railway Guard happened to pass by that way. The deceased asked Viri Singh to go to the shop of his brother and to fetch Scooter from there. Viri Singh went to the shop of Ashok and asked him to take his Scooter to his brother Bhupendra Singh. Ashok took the Scooter to Bhupendra Singh and then returned to his shop. Bhupendra Singh and Hemant Kumar climbed on the Scooter, purchased Beer bottle from a shop and then went to the play ground of the Boys Higher Secondary School. There they seated themselves on a chabutara and consumed Beer. After sometime, when they consumed all the liquor, the deceased asked Hemant Kumar to bring another bottle and gave Rs. 60/- to him. After having purchased another bottle when Hemant Kumar returned to the play ground he noticed that present accused was there just close to the deceased and altercations were going on between the deceased and the present appellant and they were threatening each other. The appellant took out country made pistol and fired at the deceased. Hemant Kumar got horrified and left the place of incident. He went towards Udai Mod but from there he came back to Choudhary Hotel where Ashok Kumar, younger brother of the deceased, was staying. Hemant informed Ashok Kumar of the incident and asked him to accompany him to the place of occurrence where Bhupendra Singh was lying in injured condition. The two went to the play ground where Bhupendra Singh was still lying but the appellant had escaped by then. The two met the injured Bhupendra Singh who was sitting on the play ground of the school. The two went to the play ground where Bhupendra Singh was still lying but the appellant had escaped by then. The two met the injured Bhupendra Singh who was sitting on the play ground of the school. On the way. they were intercepted by two other persons who started beating Ashok. Hemant Kumar left and went to the house of Ghanshyam, cousin of the deceased. He narrated the incident to Ghanshyam and then Hemant, Ghanshyam, Nagendra Singh and other persons who went to the place where two unknown persons caught hold of Ashok Sind hi. The deceased was lying there in injured condition. They brought Bhupendra Singh to the house of Ghanshyam Singh and therefrom took him to the hospital on their shoulders since the Scooter was not functioning. Ghanshyam Singh proceeded to fetch a Rickshaw. In the meanwhile the police reached there and took the deceased in a Jeep to the hospital. 7. The further version given by P.W. 1 Hemant Kumar is that after the police had taken Bhupendra Singh to the hospital, he himself went to Sindhi Colony where, he contacted Kapil Kukreja and narrated the entire incident to Kukreja and his elder brother. 8. In cross-examination, the witness has further stated that he contacted Kukreja for the reason that he (Kukreja) had good relations with police personnels. He has further stated that Dr. Shahstri and the elder brother of Kukreja went to the hospital where Bhupendra Singh had already been admitted. Therefrom, Hemant and Ashok went to the house of Tejpal Compounder in order to hire his jeep so that Bhupendra Singh could be taken to the hospital at Jaipur. However, on the crossing he met with Mohan Singh, father of the deceased, and narrated the entire incident to him. Mohan Singh left for the hospital and the witness himself went to his own house. When he came to know that Bhupendra Singh had succumbed to his injuries he went to the hospital 9. Be that as it may, in the course of investigation P.W. 17 Amarchand, SHO inspected the place of occurrence and seized blood smeared soil from the place of occurrence near the Chabutara behind the school building. He further found some broken pieces of bangles, one pair of chappals (male) and one chappal (female) and a cloth pad lying near the place of occurrence and seized and sealed them. He further found some broken pieces of bangles, one pair of chappals (male) and one chappal (female) and a cloth pad lying near the place of occurrence and seized and sealed them. After conducting the post mortem examination. Dr. Sharma delivered 13 pallets, which were recovered from the body of the deceased, a shirt and a baniyan, worn by the deceased, to the Investigating Officer. Shri Amarchand duly seized and sealed them also. All these articles were sent to the FSL for chemical examination and were reported to be having blood stains on them. 10. In the course of investigation, the present appellant was arrested on 1.4.1994. While in police custody he is stated to have given an information under Section 27 of the Indian Evidence Act in consonance of which a country made pistol with an empty barrel was discovered from a place, pointed out by the appellant. The pistol with an empty barrel and the pallets, which were recovered from the body of the deceased, were examined by the Assistant Director, Forensic Science Laboratory who reported that the pistol was serviceable and that the pallets were fired by the said country made pistol. After having completed the investigation the police charge sheeted the present appellant. 11. At the trial, the prosecution examined 18 witnesses to prove the charge under Section 302 IPC, which was framed against the appellant by the learned trial Judge. The appellant pleaded not guilty to the charge. In his defence he stated that he had been falsely implicated in the present case. No evidence in defence was, however, adduced by him. The learned trial Judge held that from the statement of P.W. 1 Hemant it was proved that the present appellant was the author of the fatal injury caused to the deceased with a fire arm. He thus believed the prosecution case and convicted and sentenced the appellant in the manner stated above. 12. Mr. The learned trial Judge held that from the statement of P.W. 1 Hemant it was proved that the present appellant was the author of the fatal injury caused to the deceased with a fire arm. He thus believed the prosecution case and convicted and sentenced the appellant in the manner stated above. 12. Mr. N.C. Choudhary, learned counsel for the appellant vehemently urged that P.W. 1 Hemant Kumar, who has been examined as an eye witnesses in the case as also two other witnesses P.W. 5 Mukesh Choudhary and P.W. 6 Mukesh Agrawal, who had identified the present appellant at the test identification parade in the course of investigation and also at the trial, were not at all reliable witnesses and the learned trial Judge has erred in law and on facts in placing reliance upon their testimony. Mr. Choudhary further submitted that the evidence of the recovery of the pistol at the instance of the appellant was also not believable and, therefore, there was neither any convincing and reliable direct evidence nor circumstantial evidence in the case for holding the present appellant guilty of causing the death of Bhupendra Singh deceased. 13. The learned Public Prosecutor Mr. R.S. Agrawal, took us through evidence on record and highlighted the fact that since P.W. 1 Hemant Kumar had himself witnessed the appellant and had seen the appellant firing at the deceased with a country made pistol, the charge framed against the appellant stood proved beyond reasonable doubt. The learned Public Prosecutor further submitted that irregularities committed in the course of investigation do not vitiates the trial of the appellant if the charge is found proved against him beyond reasonable doubt. Learned PP further submitted I that the Pistol with empty barrel was discovered from a hidden place at the information and instance of the appellant and there was no reason to disbelieve this incriminating evidence against the appellant. 14. We have given our thoughtful consideration to the submission advanced before us and have carefully examined the evidence available on the record of the lower court. 15. Mr. Choudhary did not dispute, and to our mind rightly, that on the fateful night Bhupendra Singh-deceased had died a homicidal death. 14. We have given our thoughtful consideration to the submission advanced before us and have carefully examined the evidence available on the record of the lower court. 15. Mr. Choudhary did not dispute, and to our mind rightly, that on the fateful night Bhupendra Singh-deceased had died a homicidal death. It was not disputed that at about 9.30 p.m. the deceased was caused fatal injury on 113 his chest with a fire arm and that the injury was caused to him at left lung and heart due to which he succumbed to his injuries. It was not challenged that soon after the occurrence the deceased had been admitted to the local hospital at Karauli where he was examined by P.W. 13 Dr. M.L. Sharma who observed gun shot wound on his chest as also a lacerated wound on the outer part of his body. Dr. Sharma has further stated that on opening the body of the deceased it was revealed that the pallets had pierced the lung and heart of the deceased, which resulted into the death of the deceased. Causing injury with a deadly weapon like a pistol on fatal part of the body of a person like chest and such injury piercing the lung and heart of the deceased was an intentional act of the assailant against his victim. The injury had been caused intentionally and such injuries proved fatal to the victim. 16. We, therefore, hold that injury caused to Bhupendra Singh deceased with fire arm was sufficient to cause his death in the ordinary course of nature. Since the fatal injury had been caused with a deadly weapon on a vital part of the body of the deceased the offence of murder punishable under Section 302 IPC was committed. 17. Now, the pertinent question that arises for consideration is as to whether the present appellant was the author of the fatal injury caused to Bhupendra Singh deceased. 18. The learned counsel for the parties were fair enough to state that though in all as many as 18 witnesses were examined by the prosecution to connect the accused with the crime in the present case, yet the material evidence consists of the statement of P.W. 1 Hemant, who was examined as an eye witness in the case. 18. The learned counsel for the parties were fair enough to state that though in all as many as 18 witnesses were examined by the prosecution to connect the accused with the crime in the present case, yet the material evidence consists of the statement of P.W. 1 Hemant, who was examined as an eye witness in the case. In so far as other incriminating circumstance against the present appellant is concerned, such circumstance lies in the recovery of country made pistol which is said to have been discovered and recovered at the information and instance of accused-appellant. 19. The learned Public Prosecutor on the contrary, vehemently urged that P.W. 1 Hemant was a reliable witness and, therefore, the conviction of the appellant may safely be based on the testimony of this witness. As against it, Mr. Choudhary vehemently urged that by no stretch of imagination this witness can be held to be as witness of sterling worth so as to make his sole testimony the basis of conviction of the appellant for the offence under Section 302 IPC. 20. At the trial, Hemant Kumar P.W. 1 was examined as an eye witness in the present case. It was he who had reported the incident to P.W. 4 Mohan Singh, the father of the deceased who is the informant in the present case. Three other witnesses namely: P.W. 3 Rampratap, PW. 5 Mukesh and P.W. 6 Mukesh were also examined as witnesses to identify the appellant. These three witnesses are stated to have identified the appgllant at the test identification parade as also in the court at the trial. The question arises as to how the testimony of these three witnesses is relevant in the present case. 21. P.W. 6 Mukesh has stated that he could identify the appellant for the reason that the appellant used to purchase some goods or articles like Gutkha etc. from his shop. This witness might have been able to identify a customer, who might have been purchasing some article from his shop but the pertinent question is as to whether his evidence is relevant under Section 9 of the Evidence Act in the present case. The evidence of identification of a person or a thing is relevant under Section 9 of the Indian Evidence Act when such evidence relates to any fact in issue in a case. The evidence of identification of a person or a thing is relevant under Section 9 of the Indian Evidence Act when such evidence relates to any fact in issue in a case. In the present case the fact in issue was whether the appellant had caused the death of the deceased and on this point the testimony of P.W. 6 Mukesh is totally silent. As stated earlier it may be possible that he might be able to identify a customer who might have purchased some thing from his shop. But unless, the evidence of identification is further related to the involvement of the customer in the commission of the crime, the evidence of identification would be quite irrelevant. We, therefore, hold that the evidence of P.W. 6 Mukesh is neither relevant nor of any value in the present case. 22. In so far as the evidence of identification led by P.W. 5 Mukesh is concerned, we find that he has simply stated that he had seen a person coming from the side of the school. He lateron identified such person as the present appellant at the test identification parade in the course of investigation and at the trial. This witness does not say that he had seen the deceased in the company of the apepllant or had seen the appellant with the deceased on or about the place of occurrence. Since the testimony of this witness too suffers from the same infirmity as the testimony of PW 6 does, no reliance can be placed on such testimony in order to incriminate the present appellant with the commission of the crime in the present case. Moreover, we shall discuss with the worth and value of the testimony of this witness at a later stage. 23. Now, coming to the testimony of P.W. 1 Hemant who has been examined as the sole star eye-witness in the present case, we may observe that under our system of administration of criminal justice, it is not at all necessary that specified number of witnesses be examined to prove a particular fact. In our system, we go by the quality and not quantity of evidence and in this behalf we differ from British law relating to certain offences, which require a particular number of witnesses to prove a fact. In our system, we go by the quality and not quantity of evidence and in this behalf we differ from British law relating to certain offences, which require a particular number of witnesses to prove a fact. The conviction of a person may be based on the solitary testimony of a witness provided the testimony of such witness is truthful, convincing and reliable. This principle of criminal jurisprudence has statutorily been recognised in Section 134 of the Indian Evidence Act, which says that no particular number of witnesses would be required to prove a fact. We are. therefore, in agreement with Mr. Agrawal that the conviction of the present appellant may be based on the sole testimony of P.W. 1 Hemant, provided his testimony is found to be of sterling worth. 24. On minutely examining the testimony of P.W. 1 Hemant we find ourselves unable to agree with Mr. Agrawal that this witness may be relied upon even for a moment. We have dealt with the evidence led by this witness in sufficient detail and need not repeat the same once again. What has come out clearly in the evidence of this witness is that he was not even on speaking term with the deceased for last the two & half months prior to the so incident. He has stated that he had met with the deceased while returning from Bajaria for the first time after a lapse of two & half months and that deceased had asked him as to why he felt annoyed at him. The witnesses admitted that earlier they were on visiting terms and he used to come to the house of the deceased and the deceased used to go to the house of the witness. To a specific question put by the defence that the deceased was having illicit relations with his married sister. the witness though denied such suggestion yet in the totality of circumstances, we find some substance in the defence's suggestion given to the witness. It does not appeal to our reasons that two person, who were not even on speaking terms with each others would come so close to each other to such extend that they would make a programme together to go to a liquor shop, purchase Beer from such shop to and go to a desolate and lonely place behind school premises to consume the liquor there. It also does not appeal to our reasons that after having consumed one full bottle of Beer there, the deceased would ask the witness to go to the market and purchase another bottle of beer and the witness would go and purchase another bottle and come again to the same place. We do not accept that when Hemant Kumar had allegedly reached the place of occurrence at about 9.30 p.m. he had seen the present appellant exchanging hot words with the deceased and in the course of altercations between the two the appellant had taken out a conuntry made pistol from his pocket and fired at the deceased. Had that been so the witness would have naturally raised an alarm so as to attract others to the place of occurrence. But he did not do that. It cannot be lost sight of that the place of occurrence situated just behind the school building and in the school building there was staying a party of RAC officials. 25. That apart, it has come in evidence that there were four Chowkidars of the school guarding answer books which were kept in the school premises at the relevant time. It was not too late in the night and the school was also located in an inhabitated area of the town, if not in the middle of the town. It is in evidence that just outside of the school boundary there were certain persons of Kalbelia Tribe. Besides, there were other residential houses including that of Ratan Singh, father of Ghanshyam P.W. 10. Ghanshyam Singh was none else but the cousin of the deceased and, as stated by the witness, the deceased had been taken to the house of Ghanshyam Singh and therefrom they had tried to take him to the hospital. It does not appeal to our reasons that an incident would have been committed in the presence of P.W. 1 Hemand but he would not like to go to the house of the uncle of the deceased and would, instead, like to run away on Scooter and go to Udai Mod and therefrom would go to the station to inform Ashok, P.W. 11, the brother of the deceased. The witness has admitted that while going on the Scooter to Udai Mod he happened to pass by the police station and even after taking Ashok with him he again passed by the police station. It is really . strange that a witness, who had seen his friend being brutally murdered by another fellow, in the manner as stated by him, would not go to the house of Ghanshyam Singh, which was close by or to the police which was located on the way, on which he was going on his Scooter. This conduct of that witness is wholly unnatural and improbable and does not inspire any confidence in us. 26. It may also be pointed out that P.W. 1 Hemant had informed not only P.W. 11 Ashok Singh of the incident but also P.W. 4 Mohan Singh, father of the deceased. According to him, Mohan Singh, the father of the deceased, met him on the way and there he told him that somebody had fired at the deceased and caused him injuries. But P.W. 4 Mohan Singh stated in the first information report that P.W. 1 Hemant had taken the deceased with him from his house and it was after about two & half hours that he had again come to his house and informed him that some person had caused injuries to the deceased. Obviously, P.W. 4 does not corroborate PW.i. The witness has admitted in the cross examination that after having informed Ashok P.W. 11 of the incident and taken him with him to the place of occurrence and therefrom taken injured Bhupendra Singh on the Scooter, he had rushed to Kukreja brothers who had good relations with the police. The abnormal conduct of this witness is highlighted by the fact that instead of immediately informing the uncle or father of the deceased of the incident he straightway went to a to person who had good relations with the police personnels. He has further stated that Kukreja brothers as also one Dr. Shashtri had left for the police station on a Motor Bike. What was the necessity for the witness to have contacted Kukreja brothers and Dr. Shashtri? Why did he opt to go to them instead of going to the police and informing the police of the crime, which was allegedly committed before his own eyes. Shashtri had left for the police station on a Motor Bike. What was the necessity for the witness to have contacted Kukreja brothers and Dr. Shashtri? Why did he opt to go to them instead of going to the police and informing the police of the crime, which was allegedly committed before his own eyes. This question, which remains unanswered, go a long way not only to discredit this witness but also to create a suspicion regarding his own involvement in the murder of the deceased. As a matter of fact, we are of the considered view that the needle of suspicion points out at this witness as a possible perpetrator of the crime in this case and has falsely implicated the appellant, who appears to be otherwise innocent, on the face of the record. The other prosecution witnesses have affirmatively stated that P.W. 1 Hemant as also Mukesh and one other were arrested by the police. P.W. 4 has stated that since the police was not taking proper steps in the investigation he had made complaints to the higher authorities of the police and that the police had to answer the questions, raised in the Vidhan Sabha in the present matter. It does not appeal to our reason that Mohan Singh, the father of the deceased would have deposed such false facts in the court. All these facts create a doubt in our mind regarding the probative value of the testimony of PW 1 Hemant. We accordingly hold that in the given facts and circumstances of the case, the testimony of P.W. 1 Hemant does not inspire any confidence in us. He himself was a suspect in the present case and, therefore, no reliance can be placed on his testimony. 27. Here, we would like to point out at the other aspect of the case, which demolishes prosecution case. The RAC personnels who were staying in the room of the school building, as they were guarding answer books kept there, were vigilant enough to hear some noise coming from behind the school building. As stated earlier, P.W. 2 Brij Kishore, on hearing a noise had opened the window of his room to peep outside. He had noticed certain boys making noise there. As stated earlier, P.W. 2 Brij Kishore, on hearing a noise had opened the window of his room to peep outside. He had noticed certain boys making noise there. After about half an hour or so a stone was pelted at the window and thereupon, Brij Kishore had asked Rampratap and Suman to go out and enquire into the matter. Rampratap and Suman had gone out and seen the deceased lying on the ground and two boys quarreling there. Rampratap further stated that he and Suman had caught hold on one of boys who had raised alarm and on the instructions of Brij Kishore they had left for the police where they informed P.W. 17 Amarchand of the trouble at the school premises. Amarchand had sent his Deputy P.W. 18 Sapat Khan to bring Bhupendra Singh in his jeep to the hospital from the play ground of the school. It may be noted that P.W. 13 Dr. Mohanlal Sharma had examined the deceased for his injuries on the request of the police. P.W. 3 Rampratap has categorically stated that during the whole incident he had not heard any noise created by the running of a Scooter on or around the place of occurrence. Such statement of this witness, whose testimony we have no reasons to doubt and discard. destroys the testimony of P.W. 1 Hemand who has stated to have reached the place of occurrence on a Scooter atleast for three times. P.W. 2 Brij Kishore and P.W. 3 Rampratap have categorically stated in their statements that at the relevant time they had not seen any person lying in an injured condition. The statements of these witnesses read with the statement of P.W. 17 Amarchand SHO lead us to ponder much over the realities of this case. 28. It is really more astonishing. as also painful, to find that though an to injured person had been taken by the police in their jeep to the hospital and the Doctor had examined the injured on the request of the police yet the police did not register the case at the relevant time. 29. It now takes us to another aspect of the case which was stressed much by Mr. 29. It now takes us to another aspect of the case which was stressed much by Mr. Choudhary, learned counsel for the appellant and which is to the 15 effect that the FIR was lodged not only with inordinate delay but also after having obtained all the relevant and material informations about the incident. The FIR was not lodged by P.W. 4 or any other relative of the deceased during that night but one was lodged with inordinate delay at about 6.45 a.m. on 26.3.1994. If Mohan Singh the father of the deceased, had been informed of the incident by PW. 1 Hemant who had witnessed the appellant causing fatal injury with a fire arm to the deceased, there was no reason that First Information Report would not have been lodged in that very night. The occurrence had taken place in a school play ground and the police station was located close to the place of occurrence. The police had been informed while the deceased was still alive. If Hemant had witnessed any occurrence. he could have narrated those facts either to the relatives of the deceased or even to the police but in the FIR no assailant of the deceased was named. If Hemant did not know the assailant by name, he could mention the features (hulia) of the assailant of the deceased. But that was not done. Even in the delayed FIR what was reported to the police was that certain persons had caused injuries to the deceased. Had Hemant seen the present appellant firing at the deceased with country made pistol, there could have been no reasons for P.W. 4 Hemant not to have apprised the informant of that fact in which case the appellant would have been named as the offender in the FIR but that was not to be. No reliance can, therefore. be placed on the testimony of P.W. 1 Hemant to fasten a criminal liability on the appellant. 30. In so far as the recovery of country made pistol at the instance of the present appellant is concerned, we are of the opinion that no reliance can be placed on such evidence for more than one reasons. In the first place, no witness of recovery was examined at the trial. 30. In so far as the recovery of country made pistol at the instance of the present appellant is concerned, we are of the opinion that no reliance can be placed on such evidence for more than one reasons. In the first place, no witness of recovery was examined at the trial. Both Bhim Singh (since deceased) and Devpal, the second witness to the alleged recovery were not even examined at all by the prosecution at the trial of the appellant. There is thus no iota of independent evidence about the recovery of Katta at the instance of the accused appellant. 31. That apart, it does not appeal to our reasons that the appellant, if he had really fired at the deceased with the country made pistol, would keep such pistol with its empty barrel for about 15 days. Moreso, even the empties of the cartridges, which were fired from the country made pistol were not recovered from the place of occurrence. It is the normal conduct and behaviour of a guilty person to destroy the evidence of his guilt as early as possible. If the appellant had used a country made pistol against the deceased and fired at him with such weapon, he would not ordinarily like to keep the empty barrel of the pistol for so many days. The evidence on recovery of the pistol at the instance of the appellant is thus not reliable and trustworthy. 32. In the totality of circumstances, we are of the opinion that the prosecution have failed to prove the guilt of the accused beyond reasonable doubt. That being so, the appellant is entitled to get benefit of doubt. 33. In the result, the judgment & order under appeal are hereby set-aside and the appellant-Raghunandan is acquitted of the offence under Section 302, I.P.C. He is in custody, he shall be set at liberty forthwith, if not wanted in any other case. 34. The appeal stands allowed.Appeal Allowed. *******