A. K. SHRIVASTAVA, J. ( 1 ) FEELING aggrieved by judgment of conviction and order of sentence dated 3rd March, 1990 passed by learned sessions Judge, Morena in Sessions Trial No. 72/89, convicting the appellant under Section 302, IPC and sentencing him to suffer rigorous imprisonment of life, the appellant has knocked the door of this Court by preferring an appeal under section 374 (2) of the Code of Criminal Procedure, 1973. ( 2 ) THE facts shorn of unnecessary details lie in a narrow compass. It is the case of prosecution that Roshanbai (hereinafter referred to as the "deceased") was a concubine of accused/appellant. The deceased was residing with her mother Almadi Bai in subhash Nagar of the township of Morena. On the fateful day i. e. , 17-12-1988, at 12 in the noon, accused armed with single barrel gun arrived at the house of the deceased and was talking with her inside the room. At 1. 30 p. m. accused asked the deceased not to go to Ambah. It is said that at that juncture Afhis Khan arrived there to carry the deceased with him. The deceased was pacifying the accused that she will return after two days, on which the accused again told her not to go, as a result of which she stood up from the cot and said that she is going at the house of his brother Lalla. At that juncture it is said that accused stood up from the cot and came towards at the door and thereafter fired gun. The bullet struck left elbow and abdomen region as a result of which the deceased fell down and breathed her last. ( 3 ) AFTER firing, the accused fled from the spot. The son of the complainant as well as certain other persons of the locality chased to catch the accused and the complainant (PW-2) Almadi Bai, who is the mother of the deceased, went to lodge the report. ( 4 ) ON lodging of F. I. R. , the criminal law was set in motion. The investigating officer immediately arrived at the place of occurrence, prepared the panchyatnama of dead body; prepared the spot map; sent the dead body for post-mortem; seized the blood stained earth from the spot; seized broken pieces of bangles; bullet and plastic cover of bullet from the spot. The investigating officer immediately arrived at the place of occurrence, prepared the panchyatnama of dead body; prepared the spot map; sent the dead body for post-mortem; seized the blood stained earth from the spot; seized broken pieces of bangles; bullet and plastic cover of bullet from the spot. The persons went to catch the accused, brought him at the place of occurrence along with his gun and its licence. The gun and licence along with live catridges were seized by the police. The postmortem of the deceased was conducted on 18-12-1988. ( 5 ) IN furtherance to his investigation, the investigating officer sent the fire arm, the gun, bullet and blood stained clothes etc. to the chemical examiner and after completing the investigation, a charge-sheet was submitted in competent Court, who on its turn committed the case to the Court of Session, where the accused was tried. ( 6 ) THE learned trial Judge after going through the charge-sheet framed charges punishable under Section 302, IPC against the accused. Needless to emphasis the accused abjured his guilt and pleaded complete innocence. His defence is of maladroit implication. ( 7 ) IN order to prove the charge the prosecution examined as many as nine witnesses and placed Ex. P-1 to P-19 the documents on record. ( 8 ) THE learned trial Judge after appreciating and marshalling the evidence came to hold that appellant did commit the offence for which he was charged and eventually convicted him and passed sentence which we have mentioned herein above. Hence, this appeal. ( 9 ) IN this appeal Shri J. P. Gupta, learned senior counsel assisted by Shri Atul Gupta has submitted that though several witnesses were cited by the prosecution as eyes witnesses, but, except PW-2 Almadi Bai all the witnesses turned hostile and thus the entire story rests upon the testimony of PW-2 who Is also an author of F. I. R. Ex. P-3. The submission of learned senior counsel is that if the evidence of this witness is tested on the avail of facts and circumstances of the case it would reveal that her evidence is planted and therefore, she is not a reliable witness. P-3. The submission of learned senior counsel is that if the evidence of this witness is tested on the avail of facts and circumstances of the case it would reveal that her evidence is planted and therefore, she is not a reliable witness. In support of his contention, learned counsel has placed reliance on AIR 1957 SC 614 , Vadivelu Thevor v. State of madras; AIR 1976 SC 560 , Badri v. State of rajasthan; AIR 1994 SC 1250 , Patel Chela viram v. State of Gujrat; AIR 2001 SC 1380 , sohan v. State of Haryana and a recent judgment of the Apex Court in the case of Joseph v. State of Kerala, AIR 2003 SC 507 . ( 10 ) THE learned counsel by inviting our attention to the decision of AIR 1975 SC 1727 , Ram Narain v. State of Punjab; AIR 1980 SC 1873 , Purushottam v. State of madhya Pradesh; AIR 1996 SC 3345 , State of M. P. v. Surbhan and AIR 2002 SC 2374 , dinesh v. State of Haryana has contended that if there is contradiction between medical testimony and eye-witness regarding fatal injury to the deceased, the preferential value would be the medical evidence. It has been further propound by learned senior counsel that there are serious infirmities in preparing the site map and to bolster his contention he has placed certain rulings including three decisions of Supreme Court and a decision of this Court. The learned senior counsel has also invited our attention to the ballistic expert's report Ex. P-18. On the basis of these premised arguments, it has been contended by learned senior counsel that even if the case of prosecution is taken into its entirety, It would be very difficult to hold that appellant committed the said offence. ( 11 ) REFUTING the aforesaid submissions of learned senior counsel, it has been argued by Shrl Brijesh Sharma, learned Govt. Advocate that all the eye-witnesses except pw-2, Almadi Bai, have become hostile but under Section 134 of the Evidence Act even if there is a single witness proving the case of prosecution, conviction can be accorded on the basis of that witness. Advocate that all the eye-witnesses except pw-2, Almadi Bai, have become hostile but under Section 134 of the Evidence Act even if there is a single witness proving the case of prosecution, conviction can be accorded on the basis of that witness. The contention of learned Government Advocate is that learned trail Judge took much pains in appreciating and marshalling the oral and documentary evidence and thereafter arrived at a definite conclusion that appellant had committed the offence and therefore, he has rightly convicted him. According to learned government Advocate the appeal sans substance and same be dismissed. ( 12 ) FOR appreciating the rival contentions of learned counsel for the parties, we shall nor examine the prosecution's case and the evidence led by it. ( 13 ) PW-1 Dr. Sahid Hussain is Autopsy surgeon and had conducted the postmortem, his report is Ex. P-2. In the postmortem report following injuries were found by the doctor : (1) Lacerated wound of entrance right lumber region 6 cms above right iliac crashed size 2 cm x 2 cm x deep upto abdominal cavity. Direction from below upwards. (2) Wound of exit at left hypochondrium at the level 9th costal cartilage size 3 cm x 3 cm x deep upto abdominal cavity. (3) lacerated wound with traumatic amputation of left distal phalanx of right middle finger. (4) Gun shot wound at left elbow joint. Wound of entrance. A lacerated wound size 2 cm x 2 cm through x through. Wound of exit 4 cm x 2 cm through x through. ( 14 ) ON the basis of aforesaid injuries which were found by the Autopsy Surgeon during postmortem it has been specifically said by him that the injuries sustained to the deceased were caused by gun shot injuries and the fire was more than one. Though learned Government Advocate by inviting our attention to para 7 of the testimony of this witness has argued that if the stale ment of the Autopsy Surgeon, which he has stated in para 7, is considered in proper perspective, it would reveal that injuries were caused by single gun shot injury. We have considered the submission of learned government Advocate and we find that at the first blush though the said argument appears to be quite attractive, however, on deeper scrutiny it is found to be devoid of any substance. We have considered the submission of learned government Advocate and we find that at the first blush though the said argument appears to be quite attractive, however, on deeper scrutiny it is found to be devoid of any substance. It has been rightly contended by Shri Gupta, learned senior counsel by pointing the evidence of the Autospy Surgeon and his report Ex-P-2 that there is one entry wound on right lumber region and another entry wound on left elbow oi" the deceased, apart from injuries Nos. 2 and 3 which were mentioned in his report and which we have reproduced herein above. Thus on bare perusal of the evidence of Autopsy Surgeon and his postmortem report ex-P-2, we do not have any scintilla of doubt that the deceased sustained gun shot injuries and definitely the gun was fired more than once. No prudent man will digest this type of story that first of all the bullet would enter from left side making an entry wound on that side and later on, the same bullet, after coming out from the body, would again enter on right side, making an entry wound on that side. Thus on the basis of the evidence of Autopsy Surgeon it can safely be said that gun was fired more than once. ( 15 ) IF we examine the evidence of PW-2 (Almadi Bai) on the touch stone of postmortem report Ex. P-2 and the evidence of autopsy Surgeon it would reveal that she is concealing the reality. Though this witness was cited as an eye-witness, but, after testing our anxious consideration to the evidence of this witness on the avail of the postmortem report and the evidence of Autopsy surgeon, we can safely say that this witness cannot be relied upon. In very specific words this witness has said that there was only a single gun shot fire, which was fired by the accused. According to her, earlier to the incident, some altercation took place between the deceased and accused as accused was refraining the deceased to go to Ambah. The conversation was taking place at 'chabutara', where the deceased was standing and thereafter appellant fired the gun. As per this witness at that time accused was standing at the door. She has further stated that the bullet after entering in the left elbow entered into the stomach. The conversation was taking place at 'chabutara', where the deceased was standing and thereafter appellant fired the gun. As per this witness at that time accused was standing at the door. She has further stated that the bullet after entering in the left elbow entered into the stomach. This witness has narrated the incident in the manner as if she remained present through out the incident and had witnessed the entire episode. She has further stated that when appellant fired, she screamed, as a result of which her husband chand Khan and son Yakub arrived there and they chased the accused who was running away from the place of occurrence and she went to lodge the report. ( 16 ) THE F. I. R. Ex. P-3 was lodged by PW-2, the above said Almadi Bai, soon after the incident at 14. 30 hours of 17-12-88, while the incident took place at 13. 30 hours on that day. After lodging the report when she came back to her house she found that her husband Chand Khan, son Yakub and other inhabitants of the locality caught the accused and brought him at the place of occurrence. However, PW-3 Chand Khan has stated that on the fateful day he had gone for labour work and came at 4. 30 in the evening as he was informed that one pross has been murdered. This witness, when arrived at the spot, found that the dead body of the deceased was being sent to the hospital. At the hospital he asked his wife PW-2 almadi Bai that how the deceased had died, at that juncture she told that when the incident took place, she was not present, as she had gone to ease and when she came back, she found the deceased lying dead. PW-2 also told that somebody had killed the deceased. ( 17 ) THIS witness has specifically denied that he chased the accused to catch him. Thereafter this witness was declared hostile and was cross-examined by the public prosecutor. In cross-examination made by the defence counsel, he has admitted that on the fateful day his son Yakub was not in morena and was at Ambah. He came 2-3 days later. Sharif Khan who is his brother-in-law was also not present at Morena. Thereafter this witness was declared hostile and was cross-examined by the public prosecutor. In cross-examination made by the defence counsel, he has admitted that on the fateful day his son Yakub was not in morena and was at Ambah. He came 2-3 days later. Sharif Khan who is his brother-in-law was also not present at Morena. ( 18 ) P. W. 4 Yakub who is the son of P. W. 2 and P. W. 3 and brother of the deceased has also said that on the fateful day he was not at Morena and he came to Morena 1-2 days after the death of the deceased. This witness was declared hostile but nothing crept out from the testimony of this witness in order to support the prosecutions case. If the evidence of P. W. 2 says that these persons soon after the incident chased and she went to lodge the F. I. R. and when she came back these persons along with other inhabitants brought the accused at the place of occurrence. Thus, a doubt is created in regard to the reliability of P. W. 2, Almadi Bai so far as the presence of P. W. 3 and P. W. 4 is concerned. In the case of Joseph (supra)the Apex Court in paras 13 and 14 has categorically held that if the prosecution's case is of single testimony of an eye witness the evidence of that witness should be wholly reliable. It would be condigne to rewrite paras 13 and 14 of the said decision which reads thus : (13 ). "in a case of this nature when there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. What is urged before the Court is that FIR Exhibit P-1 contained signature of a doubtful character which P. W. 1 himself admitted as having been different from the one given by him on the acknowledgment of having received the summons. What is urged before the Court is that FIR Exhibit P-1 contained signature of a doubtful character which P. W. 1 himself admitted as having been different from the one given by him on the acknowledgment of having received the summons. How far reliance can be placed upon his evidence when P. W. 1 stated that he had rushed to the injunction to inform p. W. 2 to 4 and thereafter rushed back to the place of the incident, while the deceased also run on the western side of the place of incident though he was profusely bleeding and he got hold of his wound by his hand and ran. If that is so, there would have been blood all over the place and not at one particular point. The abrasion on the neck of P. W. 1 could have been caused by a nail scratch and not by a weapon and was not a bleeding injury will clearly believe the statement made by him that he was profusely bleeding. If really the witness (P. W. 1) was wearing blood stained clothes the same would have been certainly seized by the police for appropriate investigation of the same. Particularly, when the trial Court had given cogent reasons to acquit the accused, the high Court ought to have interfered with the same merely because another opinion is possible and not that the finding concluded by the trial Court was impossible. (14) To our mind, it appears that the High court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a Court to record and sustain a conviction on the evidence of a solitary eye-witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard when prosecution case rests mainly on the sole testimony of an eye witness, it should be wholly reliable. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard when prosecution case rests mainly on the sole testimony of an eye witness, it should be wholly reliable. Even though such a witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial Court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable. " ( 19 ) IN the case of Sohan (supra) the Apex court has held that the evidence of sole testimony of eye-witness should be scrutinized with great caution, specially when the said witness is highly interested. In the case of chinniah Survai (supra) while elucidating the maxim "evidence has to be weighed and not counted', in para 11 the Supreme Court has held that if such testimony is found by the Court to be entirely reliable there. is no legal impediment of the conviction of the accused persons on such proof. But the real test is that the evidence of the witness should be reliable and which would defer from case to case. On going through the evidence of P. W. 2 it appears that her evidence, as an eye-witness, has been planted and manufactured. In the case of Badri (supra)the Apex Court while placing reliance on the decision of Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 in para 12 has laid down law thus : "since under the Evidence Act no particular number of witnesses are required for the proof of any fact, it is a sound and well established rule of law that quality and not quantity of evidence matters. In each case, the Court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person. Similar is the view of the Supreme Court in another decision in the case of Jagdish prasad (supra ). ( 20 ) WE have X-rayed the evidence of P. W. 2 herein above. Her evidence does not inspire any confidence. There are serious infirmities which raises serious doubts regarding presence of this witness at the time of occurrence. Similar is the view of the Supreme Court in another decision in the case of Jagdish prasad (supra ). ( 20 ) WE have X-rayed the evidence of P. W. 2 herein above. Her evidence does not inspire any confidence. There are serious infirmities which raises serious doubts regarding presence of this witness at the time of occurrence. We are constrained to think that p. W. 2 is not at all reliable for another strong reason that she had specifically stated that appellant fired once only, though medical evidence is altogether different and if the medical evidence is considered in proper perspective the evidence of alleged eye-witness P. W. 2 is somersaulted. The Autopsy surgeon is an independent witness and there is nothing on record to indicate that he joined his hands along with the accused. Indeed this is not the case of prosecution. The Autopsy Surgeon was not declared hostile and no suggestion was put to him in regard to single gun shot injury. Thus it has been rightly contended by learned senior counsel that it would be highly unsafe, in the present factual scenario, to rely the testimony of sole alleged eye witness P. W. 2, almadi Bai. To bolster his contention he has placed heavy reliance on Dinesh v. State of haryana, AIR 2002 SC 2374 : 2002 Cri LJ 2970, in which it was held that if there is inconsistency between eye witnesses and medical evidence there is a reasonable doubt of the implication of the accused. In the said case it was alleged that eye witness was assaulted by chain by the accused. However, he did not sustain any visible injury. So far as the injuries on the deceased of that case is concerned, the eye witness said that all the three accused assaulted the deceased with sharp edged weapon. But, there were only two injuries caused by sharp edged weapon found on the person of the deceased. In these facts and circumstances the involvement of the accused was found to be doubtful by the Apex Court. In the present case also there is a specific statement of P. W, 2, almadi Bai that deceased fired single gun shot injury. However, her evidence is totally belied by the medical evidence and there is no reason to disbelieve the medical evidence. In the present case also there is a specific statement of P. W, 2, almadi Bai that deceased fired single gun shot injury. However, her evidence is totally belied by the medical evidence and there is no reason to disbelieve the medical evidence. In the case of Patel Chela Viram v. State of Gujarat, 1994 SC 1250 : 1994 Cri lj 2252 the eye-witness was inimical towards accused and his evidence was not corroborating with medical. The alleged eye witness was also interested witness and his evidence was found to be highly doubtful. In the present case also P. W. 2 being mother is highly interested person and after scrutinizing her evidence carefully, we find her to be an unreliable witness since her testimony is not corroborated by medical evidence and there is serious contradiction between the two. On the some point we may also profitable rely the two decisions of apex Court in the case of Ram Narain (supra) and pursushottam (supra ). ( 21 ) THE learned senior counsel for the appellant has also invited our attention to the testimony of the P. W. 2, Almadi Bai and investigating officer P. W. 9, Balveer Singh yadav and has contended that if testimony of these two witnesses, in regard to the preparation of spot map, is kept in juxtaposition, it raises a serious doubt that the site plan was prepared in the presence of P. W. 2, Almadi Bai. In para 13 of her statement, she has specifically stated that when the site plan was prepared she pointed out where the accused and deceased were standing, she further says that she told from which place the appellant fired the gun where the deceased was standing when she received the gun shot injury, but, when the spot map was confronted to her she has said that why these essential ingredients are not present in site plan, Ex. P-4, she cannot say. It be seen that site plan has not been signed by this witness. Just contrary to the testimony of P. W. 2, the investigating officer Shri Yadav in very specific words, in para 9 of his testimony, has stated that P. W. 2 did not point out the place from where the gun shot was fired and where the deceased was standing when she received the gun shot injury. Just contrary to the testimony of P. W. 2, the investigating officer Shri Yadav in very specific words, in para 9 of his testimony, has stated that P. W. 2 did not point out the place from where the gun shot was fired and where the deceased was standing when she received the gun shot injury. At this juncture we have also perused the site plan Ex. P-4 and we find that the place from where it is alleged that appellant fired the gun and the place where the deceased received the gun shot injury, are not shown. The submission of Shri Gupta, learned senior counsel is that it was incumbent upon the investigating officer who has enquired the facts from the witnesses on these material points, should have been mentioned in the spot map. To buttres his contention the learned counsel has placed heavy reliance on AIR 2004 SC 124 , Shingara Singh v. State of Haryana in which the Apex Court has thrown sufficient light in this regard and has laid down the law that the essential features should have been shown In the site plan and the omission to show them in the site plan cannot be said to be a mere lapse on the part of investigating agency. For better understanding it would be apposite to rely para 29 of the said decision which reads thus: "so far as the ladder is concerned, P. W. 5, Balbir Singh stated that the ladder was in the same position when the Investigating officer came to the place of occurrence but he could not explain why it was not shown in the site plan prepared by the police. Even p. W. 10 the Investigating Officer had to admit that in the site plan the position of the ladder was not shown. These features of the prosecution case also support that conclusion reached by the trial Court that the occurrence must have taken place in a manner different than the one deposed to by the alleged eye-witness. The evidence on record with regard to the existence of cots in the courtyard of Gurdeep Singh, the existence of a bicycle, as also about existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The evidence on record with regard to the existence of cots in the courtyard of Gurdeep Singh, the existence of a bicycle, as also about existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The omission to show them in both the site plans cannot be attributed to a mere lapse on the part of the Investigating agency. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of P. W. 5 and another witness and on their pointing. However, P. W. 5 denied that the plans were prepared in his presence. The other witness was not examined. " it would be fruitful to rely on other decision of the Apex Court Baldev Singh v. State of M. P. , AIR 2003 SC 2098 on this point. Thus on the basis of the above said decisions of the Apex Court, we can safely say that preparation of site plan is not a mere formality, but, it is an essential feature in order to reach the firm conclusion by the court in order to ascertain whether the offence has been committed by accused or not. Since there is a serious infirmity in the site plan as it does not indicate that from which place the accused/appellant fired the gun and the place where the deceased was standing, therefore, in view of the aforesaid decisions of the Apex Court the benefit would be to the accused. ( 22 ) SHRI Gupta, learned senior counsel by inviting our attention to Ex. P7 which is a seizure memo of the broken plastic dot of a bullet and Ex. P-9 which is a seizure memo of 12 bore single barel gun and seizure of empty cartridge seized from the chamber of the said gun and the licence of the gun, has argued that only single empty cartridge was recovered and that too from the barrel of the gun while case of the prosecution is that more than single fire took place in the incident as it is clearly established from the testimony of autopsy Surgeon. The prosecution did not care to find out the second empty cartridge which would indicate that the story of prosecution is doubtful. The prosecution did not care to find out the second empty cartridge which would indicate that the story of prosecution is doubtful. Our attention has also been drawn to Ex. P17 which is a letter addressed to Director, Forensic Science laboratory, Sagar sent by S. P. , Morena by which certain articles were sent to him for examination. A packet, containing the empty cartridge was sent but the said cartridge was sent in a sealed parcel has not been mentioned in the letter which would mean that it was not sent in the sealed parcel. ( 23 ) THE learned counsel has also invited our attention that the incident took place on 17-12-1988 and the empty cartridge and the fire bullets were seized on the same date but they were sent on 27-12-1988 to the forensic Science Laboratory which reached to Its office on 30th Dec. 1988. The contention of learned counsel is that the prosecution did not bother to give any explanation that where during this period of ten days these articles were kept. There is total lack of evidence in this regard that these articles were sealed because in the letter addressed to Forensic Science Laboratory dated 27-12-1988 there is no indication that the fired bullet as well as the empty cartridge were sent in a sealed parcel. There is no iota of evidence in order to indicate that during the period 17-12-1988 to 27-12-1988 in whose power and possession these articles remained. It be seen that if the prosecution wants to connect the accused /appellant in the crime with the aid of these articles, according to us, it was incumbent on the prosecution to prove that the sealed articles remained intact since the time they were taken into custody by the prosecution agency to the time they were received by the chemical examiner/ ballistic expert. We have given our bestowed consideration in this aspect of the matter and according to our considered view, to connect the appellant with these articles with the alleged crime there should be positive evidence of the prosecution and prosecution must produce each person in whose custody the parcel remained during this period. We have given our bestowed consideration in this aspect of the matter and according to our considered view, to connect the appellant with these articles with the alleged crime there should be positive evidence of the prosecution and prosecution must produce each person in whose custody the parcel remained during this period. Since there is no evidence in this regard and this important link is missing, for this additional reason also, we are constrained to hold that the recovery part of the investigation in regard to seizure of cartridge and bullet does not connect the appellant with the alleged offence. We may not hesitate to mention at the cost of repetition and this fact cannot be marginalised and blinked away that is no evidence in order to show that the empty cartridge and the fired bullet were ever sealed. This was quite essential for the simple reason that the prosecution should produce cogent evidence that the articles which were seized and sealed were the same articles which were received and examined by the ballistic expert. Not only this, the prosecution was obliged to place cogent evidence on record that the seals of the parcel containing the empty cartridge and bullet were not tampered with till the articles are sent to the ballistic expert. If the evidence is of such sealing is not placed and produced in Court, according to us, the court cannot place its reliability on the seizure of these articles as well as the Court cannot connect the appellant with the alleged crime with the aid of this type of seizure. ( 24 ) WE would be failing in our duty if we do not place reliance on two decisions of the Apex Court, Santa Singh v. State of punjab, AIR 1956 SC 526 and Mohd. Aman v. State of Rajasthan, AIR 1997 SC 2960 wherein sufficient light has been thrown by the Apex Court in regard to the period of custody of empty cartridge with the police. The Supreme Court has held that Inordinate delay in sending the empty cartridge for examination by ballistic expert raises serious doubt and gave rise to suggestion on the part of the accused that empty cartridge which was ultimately sent to the expert relates to a cartridge that was fired by the police station and is not recovered at the spot. In the case of Mohd. In the case of Mohd. Aman (supra) there was delay of only 5 days and in those circumstances it was held by the Apex Court that when without any justifiable reason the delay had occurred it would weaken the case of prosecution. In the present case the delay is of 10 days on the part of investigating agency to send the empty cartridge and the fired bullet. In this context it would also be fruitful to rely another decision of Supreme court in the case of Mahmood v. State of utter Pradesh. AIR 1976 SC 69 wherein the apex Court has held that after sealing the parcel the seal should not remain with the investigating agency. The latest pronouncement of the Apex Court on the point is State of Madhya Pradesh v. Ghudan 2003 (Suppl 2) JT SC 481. Though in this case there was a delay of six months but the principle is the same. Since there is no explanation by the prosecution that why the empty cartridge and fired bullet were kept for 10 days, as well as there is no evidence that where and in what condition they were kept, it would be highly unsafe to hold that these articles which were alleged to have been seized are the same articles which were sent to the ballistic expert for obtaining his opinion. We may also place reliance in the case of Modan Singh v. State of Rajasthan, AIR 1978 SC 1511 , in this regard. ( 25 ) SHRI Brijesh Sharma,,learned Govt. Advocate, in his usual vehemence, tried to put a dent on the argument raised on behalf of appellant on the ground that there is no cross-examination on the investigating officer in this regard. We have considered this argument and we may say that it was the duty of the prosecution to have explained the delay by placing cogent evidence as well as it was for the prosecution to prove that the empty cartridge and ilred bullet were properly parcelled and sealed. Since there is no evidence of prosecution in this regard, merely there was no cross-examination on the investigating officer, it would not strengthen the case of prosecution. The evidence of the prosecution is otherwise. Ex. Since there is no evidence of prosecution in this regard, merely there was no cross-examination on the investigating officer, it would not strengthen the case of prosecution. The evidence of the prosecution is otherwise. Ex. P17 which is a letter dated 27-12-1988 addressed to Director, Forensic science Laboratory, Sagar, indicates that one empty cartridge was kept in a packet and the fired bullet was kept in another packet. But there is nothing in the letter in order to show that these packets were properly sealed nor in the report of ballistic expert there is any indication that these packets were received in sealed condition and the seal was intact. Along with the letter Ex. P17 certain other articles were also sent for chemical examination like blood stained shawl and the wearing apparel of the deceased and these parcels were shown to be sealed and thus it raises a heavy doubt that the empty cartridge and the fired bullet which were sent in the packet, they were not sealed. ( 26 ) THE evidence of P. W. 2 Almodi Bai is that her husband P. W. 3 Chand Khan, her son P. W. 4 Yakub, her brother and other persons chased the appellant soon after the incident had taken place and she went to lodge report and when she came back she found that appellant was brought by these persons. The evidence of P. W. 3 Chand Khan and P. W. 4 Yakub is otherwise and they have not said that they chased and caught the appellant and brought him to the place of occurrence. Ex. PIO is the arrest memo of accused/appellant and the place of his arrest has been shown as Subhash Nagar, morena. Since P. W. 3 Chand Khan and P. W. 4 Yakub has totally denied that they chased the appellant soon after the alleged incident and brought him to the place of occurrence this has not been proved that he was arrested at Subhash Nagar, Morena, the witness of arrest memo P. W. 6 Niyaz did not say that accused was arrested in his presence and the arrest memo was not prepared in his presence. This witness was declared hostile but the fact remains that whether the accused/appellant was arrested from subhash Nagar, Morena or not and whether there is cogent evidence in this regard. This witness was declared hostile but the fact remains that whether the accused/appellant was arrested from subhash Nagar, Morena or not and whether there is cogent evidence in this regard. The investigating officer Balveer Singh Yadav simply says that he arrested the accused and arrest memo is Ex. Plo. But his evidence is silent on the point that from which place the accused was arrested. In the accused's statement recorded under Section 313, Cr. P. O. , in answer to question No. 29 the accused specifically said that he was in village Salal and the constable came and accompanied him. He was sleeping in his house and in the night at 8 the Constable arrived at his house and took him away along with his gun, bullet and licence of the gun. Thus, when the prosecution has failed to prove the place from where the accused was arrested and the explanation has been given by the accused in his statement recorded under Section 313, of Cr. P. C. that he was not arrested from the place of occurrence but was called from his village salal, It raises a serious doubt to connect the appellant In the alleged offence and this serious infirmity is an additional ground and raises a serious doubt that appellant was present at the place of occurrence. ( 27 ) ON the basis of above said discussion and the evidence placed on record/we are of the view that the evidence of P. W. 2. Almodi Bai had no evidentiary value as it raises a serious doubt in regard to her presence at the time of occurrence. Barring the evidence of this witness there is no other witness in order to connect the appellant in the alleged offence. ( 28 ) RESULTANTLY, this appeal is allowed and the Judgment of conviction and order to sentence passed by trial Court is hereby set aside. The appellant is on bail, his bail bonds are discharged. Appeal allowed. .