JUDGMENT 1. - Appellant Naseem was indicted before the learned Additional Sessions Judge, Hindauncity in Sessions Case No. 21/99 for having committed murder of Sultan. Learned trial Judge vide judgment dated April 12,2002, convicted and sentenced the appellant under Section 302 of the Indian Penal Code to undergo imprisonment for life and a fine of Rs. 1,000/-, in default of payment of fine to further suffer three months simple imprisonment and acquitted him of the charge under Section 3/25 of the Arms Act. 2. Put briefly the prosecution case is that on September 25,1997 at 6.30 a.m. PW12 Ataullah S/o Mohammad Suwan, R/o Kazipada, Todabheem submitted a written report Ex.P7 to SHO, P.S. Todabheem wherein it was inter alia stated that in the last night he was sleeping in his house which is situated near the house of Sultan. At 1.00 a.m. on hearing outcries from the house of Sultan, he reached at the house and found Sultan lying on the floor and appellant Naseem was also there. Naseem fired a shot with his revolver which hit on the chest of Sultan whereupon he made hue and cry. When he tried to catch hold of Naseem, the appellant warned not to come near him otherwise he would fire at him also. Thereafter Naseem jumped out of the room through its window. It was also stated in Ex.P7 that two persons were also standing outside the window. Both these persons fled away alongwith Naseem. On hearing sound of fire and hue and cry, other persons assembled on the spot. Sultan succumbed to his injury instantaneously. It was further stated in Ex.P7 that he had seen two persons in electric light and whenever they were brought before him, he would identify them. Deceased Sultan was the husband of the sister of Naseem's wife. On the basis of written report Ex.P7, SHO, P.S. Todabheem registered a case under Section 302/34 IPC and investigation commenced. Formal FIR is Ex.P8. The investigating Officer reached on the spot and prepared Inquest Report Ex.P9. of the dead body of Sultan. Site Plan Ex.P4 was also prepared. Post-mortem examination on the dead body of Sultan was conducted at 8.00 a.m. on 25.9.97 by PW14 Dr. K. Asnani and he prepared post-mortem report Ex.P9. Statements of the witnesses were recorded under Section 161 Cr.P.C. The appellant was arrested on June 13,1998 vide Arrest Memo Ex.P5. of the dead body of Sultan. Site Plan Ex.P4 was also prepared. Post-mortem examination on the dead body of Sultan was conducted at 8.00 a.m. on 25.9.97 by PW14 Dr. K. Asnani and he prepared post-mortem report Ex.P9. Statements of the witnesses were recorded under Section 161 Cr.P.C. The appellant was arrested on June 13,1998 vide Arrest Memo Ex.P5. On his disclosure statement and at his instance, 0.12 bore 'Katta' was recovered which was sealed and Recovery Memo Ex.P2 was prepared. On completion of investigation, charge-sheet was laid against the appellant in the Court of Judicial Magistrate No. 1, Hindauncity who committed the case to the Court of learned Additional Sessions Judge, Hindauncity. 3. Learned Additional Sessions Judge framed charges under Sections 302 IPC and 3/25 of the Arms Act against the appellant who denied it and claimed trial. 4. In order to prove its case the prosecution examined as many as 15 witnesses. In his statement recorded under Section 313 Cr.P.C, the appellant pleaded innocence and false implication. However, no evidence was adduced in defence. 5. Learned Additional Sessions Judge after hearing the final submissions, convicted and sentenced the accused-appellant as indicated here-in-above. 6. We have heard learned counsel for the appellant, learned Public Prosecutor and have also scanned and scrutinised the material on record. 7. It is not in dispute that Sultan met with the homicidal death. As per the testimony of PW14 Dr. K. Asnani, on post-mortem examination of the dead body of Sultan, following injuries were found on his person:- EXTERNAL INJURIES: (1) Lacerated wound (wound entry) 3cm x 31/2cm x 13cm on upper part of right side of chest, right side of sternum, below clavicle bone. (2) Fracture of right side of sternum and fracture of 1st and IInd ribs of right side. INTERNAL INJURY (1) Severe haemorrhage seen in right side of pleural cavity in right lung. It was also stated by Dr. Asnani that 17 pellets were taken out from right lung and pleural cavity. Injury was caused by gunshot. In his opinion, the cause of death of deceased Sultan was penetration of lead pellets into right lung which caused severe haemorrhagic shock. Injuries were ante-mortem in nature. He prepared post-mortem report Ex.P9. 8. From the above testimony of Dr. Asnani that 17 pellets were taken out from right lung and pleural cavity. Injury was caused by gunshot. In his opinion, the cause of death of deceased Sultan was penetration of lead pellets into right lung which caused severe haemorrhagic shock. Injuries were ante-mortem in nature. He prepared post-mortem report Ex.P9. 8. From the above testimony of Dr. Asnani, the veracity of which has not been challenged by learned counsel for the appellant, it has been proved by the prosecution beyond reasonable doubt that the death of Sultan was homicidal because of injuries caused by firearm. 9. Now we come to the ocular evidence of the prosecution. PW3 Shahnaz, the wife of deceased Sultan, deposed that the appellant had divorced his wife Raheesa, who is her sister. On the fateful night she was sleeping alongwith her children in the same room where her husband Sultan was sleeping. At about 1.30 a.m. when appellant Naseem entered into the room through the window, she awoke and saw that appellant Naseem was having a pistol in his hands. Her husband did not awake. Naseem, after sitting over her husband, fired a shot which hit on the chest of her husband. She made hue and cry whereupon Naseem ran away. Her husband died on the spot instantaneously. It was also stated by Shahnaz that when her neighbours Ataullah, Hidayat Alit and Wali came at her house, they also saw the appellant running from the place of occurrence. Her father-in-law and sister Raheesa, who was residing with them, had also seen the appellant running from the spot. It was further stated by Shahnaz that before one month of the incident, the appellant had came at their house and warned her husband that if he did not send Raheesa to his house, he would kill him. As her sister had already been divorced by the appellant, she did not want to go to the appellant' house and, therefore, her husband refused to send Raheesa to the appellant's house. On account of his enmity, her husband was killed by the appellant. It was also stated by Shahnaz that at the time of the incident they were sleeping on the floor of the room. 10. PW 4 Abdul, who is father of the deceased, stated that he saw the appellant when he was jumping outside through the window of the room after the incident. It was also stated by Shahnaz that at the time of the incident they were sleeping on the floor of the room. 10. PW 4 Abdul, who is father of the deceased, stated that he saw the appellant when he was jumping outside through the window of the room after the incident. As per the statement of Abdul, he was sleeping in another room of the house at the time of the incident. On hearing sound when he came on the spot he found injury on the person of Sultan from which blood was oozing. 11. PW6 Raheesa who is ex-wife of the appellant, stated in her deposition that when her husband divorced her she came to her sister's house. On the fateful night at about 1.00 a.m. she was sleeping in the adjoining room whether father-in-law of her sister was also sleeping. On hearing sound of fire she came out of the room and saw appellant Naseem jumping outside through the window. He was having a pistol in his hands. When she reached in the room where her sister and brother-in-law were sleeping, she found bullet injury on the chest of her brother-in-law Sultan. PW7 Hidayat Ali deposed that at about 1.00 a.m. he heard the sound of fire whereupon he awoke and saw that Shahnaz, the wife of Sultan was crying. He also saw that Naseem was fleeing away from the window of the room who was having a 'Katta' in his hands. Thereafter he reached at the place of incident and found Sultan in injured condition. There was bullet injury on the person of Sultan. It was also stated by Hidayat Ali that he had seen the appellant from the roof of his house. 12. PW8 Wali Ahmed stated that on hearing hue and cry he reached at the house of Sultan. He saw Naseem running away from the window. Naseem was having 'Katta' or revolver in his hands. There was bullet injury on the chest of Sultan and he was dead. It was also stated by Wali Ahmed that Sultan was killed by the appellant because Raheesa, ex-wife of Naseem, was residing at the house of the deceased. 13. PW12 Ataullah stated that his house and Abdul Kadeer's house were situated adjacent to each other. There was bullet injury on the chest of Sultan and he was dead. It was also stated by Wali Ahmed that Sultan was killed by the appellant because Raheesa, ex-wife of Naseem, was residing at the house of the deceased. 13. PW12 Ataullah stated that his house and Abdul Kadeer's house were situated adjacent to each other. On hearing outcry from the side of Sultan's house, he went to the roof of Abdul Kadeer's house from the roof of his own house. Thereafter when he saw through the window that Sultan was lying on the floor of the room and the appellant armed with a gun was standing there. It was also stated by Ataullah that Naseem warned him that if he comes down he would kill him. Ataullah further stated that Naseem fired his pistol at Sultan and thereafter fled away through the window. Ataullah also stated that he reached at the house of Sultan where he found Shahnaz, Raheesa and Sultan in a room. Blood was oozing from the wound of Sultan. After sometime Sultan succumbed to his injury. He went to the police station and lodged written report Ex.P7. 14. As pointed out by the learned counsel for the appellant and on close and careful scrutiny of the statements of the aforesaid witnesses as also the statement of PW15 Mahendra Singh, I.O., we have found the following infirmities in the prosecution case:- (A) As per the testimony of P W3 Shahnaz, PW4 Abdul, PW6 Raheesa, P7 Hidayat Ali, PW8 Wali Ahmed and PW12 Ataullah, having entered into the room where the deceased was sleeping, the appellant fired a shot which hit on the chest of the deceased whereas PW15 Mahendra Singh, I.O. stated in his cross-examination that on investigation he came to the conclusion that the appellant did not enter into the room and the shot was fired from outside of the window. (B) As per the testimony of P W3 Shahnaz she was also sleeping in the same room where her husband Sultan was sleeping whereas PW15 Mahendra Singh deposed that the deceased alone was sleeping in the room where incident took place. In the written report Ex.P7 also it was not mentioned that Shahnaz was also sleeping in the room where occurrence took place. In the written report Ex.P7 also it was not mentioned that Shahnaz was also sleeping in the room where occurrence took place. (C) PW4 Abdul aged 82 years who is father of the deceased, admitted that because of loss of eyesight he was unable to identify the appellant. Apart from this, as per the statement of PW3 Shahnaz, before arrival of Abdul and Raheesa on the spot, the appellant had already fled away. (D) As per the testimony of PW6 Raheesa she could see the appellant running from the scene because there was a window in common wall of the two rooms of the deceased's house but it is clear from Site plan Ex.P4 that there was no window in common wall. (E) The incident took place at about 1.30 a.m. and as per the testimony of PW3 Shahnaz, police reached at the place of occurrence at 3.00 a.m. and inspected it. Thereafter police returned to the police station and came again in the morning. It was also admitted by PW4 Abdul, PW7 Hidayat Ali and PW8 Wali Ahmed that police came on the spot in the night but the written report Ex.P7 was lodged at 6.30 a.m. after a delay of five hours. The prosecution has failed to explain this delay which is fatal in view of the facts and circumstances of the present case. In our considered with no body had seen the assailant and the written report Ex.P7 was lodged after detailed deliberation. (F) The appellant has been acquitted of the charge under Section 3/25 of the Arms Act by the trial court. 15. In view of the infirmities No. A to D, we have come to the conclusion that PW3 Shahnaz, PW4 Abdul, PW6 Raheesa, PW7 Hidayat Ali, PW8 Wali Ahmed and PW12 Ataullah are not reliable witnesses and no reliance can be placed on their testimony. As per the prosecution story, having entered into the room where the deceased was sleeping, the appellant shot him dead and immediately ran away. Thus, the appellant stayed at the place of occurrence only for a few seconds. In such a situation PW& Hidyayat Ali, PW8 Wali Ahmed and PW12 Ataullah could not have seen the appellant at or near the place of occurrence. Thus, the appellant stayed at the place of occurrence only for a few seconds. In such a situation PW& Hidyayat Ali, PW8 Wali Ahmed and PW12 Ataullah could not have seen the appellant at or near the place of occurrence. Therefore, the ocular testimony of the prosecution does not inspire confidence in our mind and looking to the remaining aforementioned infirmities, we are of the view that the prosecution has failed to prove the charge under Section 302 of the Indian Penal Code beyond reasonable doubt against the appellant and learned Additional Sessions Judge has erred in convicting him for the murder of Sultan. Hence, these appeals directed against the same judgment, deserve to be allowed. 16. For these reasons, we allow the appeals and set aside the impugned judgment dated April 12,2002 rendered by learned Additional Sessions Judge, Hindu an City. We acquit the appellant of the charge under Section 302 of the Indian Penal Code. The appellant who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.Appeals allowed. *******