JUDGMENT 1. - This appeal is directed against the judgment dated 09.07.1986, passed by the additional District & Sessions Judge No. 1, Hanumangarh, in Sessions Case No. 1/85. During the pendency of appeal, appellant-Subhan Khan died, thus his appeal was abated. The appeal is now, persued by Jan Mohammad. 2. The prosecution case was started with lodging of F.I.R. by Ranjeet Singh on 28.11.1984 with Police Station, Hanumangarh town. Complainant-Ranjeet Singh stated that he is having land No. 38 MGC, in which crop was standing. On the fateful night of occurrence, he had sent his partner Bhola Ram for watching the crop. After some time Bhola Ram returned and informed that two persons are taking away the crop on a camel cart. On receipt of information, he along with Darshan Singh, Gurdayal Singh and Bhola Ram started to visit agriculture farm on Tractor and, on the way, Amar Singh also boarded their tractor. When they were crossing the road, found some indications of camel cart going through the field. Thus, the same were followed and after covering around two "Murrabbas", a camel cart was found standing. In the light of the tractor, two persons were found standing * Against the judgment dated 9.7.1986 passed by the Additional Sessic Judge, Hanumangarh in Sessions Case No. 1/85. and both of them were carrying pistols. Those persons were given call. Then, in return, those two persons opened two fires, out of which one hit to Amar Singh who fell down and died. Leaving Amar Singh there, all of them came back to the village and narrated the entire story to Ex-Sarpanch-Rajendra Singh. He immediately visited site along with them. However, neither the camel cart, nor two persons were found there, Amar Singh's dead body was lying near the place where camel cart was standing. Complainant reported the matter with a concluding statement that the accused can be identified in due course of time. The First Information Report was registered by the Police under Sections 302, 460, 379/34 of IPC, bearing No. 202/84. The Police, thereafter, conducted usual investigation and filed challan in the Court of Additional Chief Judicial Magistrate, Hanumangarh under Sections 379, 447 and 302/34 of IPC, apart from a case under Section 27 of the Indian Arms Act. The First Information Report was registered by the Police under Sections 302, 460, 379/34 of IPC, bearing No. 202/84. The Police, thereafter, conducted usual investigation and filed challan in the Court of Additional Chief Judicial Magistrate, Hanumangarh under Sections 379, 447 and 302/34 of IPC, apart from a case under Section 27 of the Indian Arms Act. The case was, thereafter, committed to the committal Court, where a charge was framed under Sections 379, 447 and 302/34 of IPC and Section 27 of the Indian Arms Act. Both the accused denied charges and claimed trial. 3. At the trial, prosecution examined twelve witnesses and produced forty-seven documents. In defence, statement of Tahal Singh as DW-1 was recorded, but no document was produced in defence. The trial Court, thereafter, convicted both the accused under Section 302/34 and under Section 27 of the Arms Act. They were, however, acquitted from the charge under Sections 379 and 447 of IPC. Both the accused were, thereafter, sentenced to life imprisonment and penalty of Rs. 100/-, for their conviction under Section 302/34 of IPC. For their conviction under Section 27 of the Indian Arms Act, accused were sentenced to six months simple imprisonment and penalty of Rs. 50/- each, in default to undergo 15 days' simple imprisonment. 4. Learned counsel for the appellant urged that two accused were implicated without there being proper identification, more so, when they were not even named in the FIR. The report does not contain even their descriptions to identify them further, the trial Court even disbelieved recovery of pistol so as to connect the same with the crime. Thereafter, the order of conviction was passed, mainly on the statements of eye witnesses, though their statements were doubtful, hence the order of conviction based on doubtful statements deserves to be set aside. It was, thus, prayed that the appeal preferred by the appellant be accepted and the order of conviction and sentence be set aside. 5. Per contra, the learned Public Prosecutor urged that accused were identified in the identification parade, so conducted by the Magistrate, whose statements were also recorded, during the course of trial. It was, thus, prayed that the appeal preferred by the appellant be accepted and the order of conviction and sentence be set aside. 5. Per contra, the learned Public Prosecutor urged that accused were identified in the identification parade, so conducted by the Magistrate, whose statements were also recorded, during the course of trial. It was further urged that the statements of eye witnesses were sufficient to prove the case against two accused, hence findings so recorded by the trial Court, based on material, should not be disturbed, rather looking to the fact that finding of the trial Court is not perverse, therefore, while exercising appellate jurisdiction, this Court should not interfere with the finding of the trial Court. 6. We have considered the rival submissions of the learned counsel for the parties and scanned the matter carefully. 7. The prosecution case mainly lies on the statements of two eye witnesses, namely, Ranjeet Singh (P.W. 2) and Darshan Singh (PW. 8). Other eye witnesses, namely, Gurdayal Singh and Bhola Ram were not produced by the prosecution. Apart from the statements of two eye witnesses, the prosecution has heavily relied on the recovery of pistol and livecartridge. 8. Trial Court first considered as to whether recovery of pistol supports the prosecution story or not as incident took place on 28.11.1984, whereas pistols were recovered on 13.12.1984, i.e., after expiry of almost fifteen days. There exists no conclusive opinion that pellets found in the body of deceased were fired by the pistol recovered by the Investigating Officer, therefore, the recovery of pistol was not found to be of great consequence so as to support the prosecution case and otherwise also, it is only a corroborative piece of evidence, thus trial Court refused to give any credence to said recovery. We are of the opinion that finding recorded by the trial Court is based on reasonings. In these circumstances, we are required to scan the matter, mainly after considering the statements of two eye witnesses. 9. PW 2 Ranjeet Singh stated that at around 2 a.m. in night, Bhola Ram informed that two persons are taking away their crop on camel cart. Immediately thereafter, he, along with others, went to the place on Tractor and on the way, deceased Amar Singh also boarded the said Tractor. 9. PW 2 Ranjeet Singh stated that at around 2 a.m. in night, Bhola Ram informed that two persons are taking away their crop on camel cart. Immediately thereafter, he, along with others, went to the place on Tractor and on the way, deceased Amar Singh also boarded the said Tractor. In the Tractor light, deceased had seen that two persons are standing along with a camel cart and both of them are none other than the accused persons present in the Court. The accused, thereafter, asked the witnesses and others to be back, otherwise they would be shot dead. Thereafter, the accused opened two fires and out of which one fire hit deceased Amar Singh. 10. PW 8 Darshan Singh has also repeated the same story which otherwise was stated by PW 2 Ranjeet Singh. In their cross-examination, witnesses could not name fire to the particular accused which ultimately hit deceased Amar Sigh. Even in the First Information Report, complainant had not even named the accused. Thus, in view of that case, the prosecution could not prove that which of the accused fired Amar Singh, hence prosecution case is totally silent on this aspect of the matter. In the cross- examination, PW 2 Ranjeet Singh pleaded his ignorance about the direction from where tractor light was focusing on accused. Further by improving his statement in examination-in-chief, he stated that out of two accused, one accused was one-eyed, standing on the right hand, whereas the second accused was standing on the left hand of the trolley. The witnesses had, thereafter, identified Subhan Khan as one-eyed person. The said witness could not further state as to whether it was a dark night or moon-lit night. In the cross-examination of PW 8 Darshan Singh, it was stated that both the accused were covered themselves with a shawl ("Khesh"), therefore, they were not in a position to know as to what type of clothes they were wearing. However, said witness further pleaded ignorance as to whether it was a dark night or moon-lit night, so as to see the accused. In view of the statement of eye witness Darshan Singh, it becomes clear that he was not in a position to even give description of the accused as they had covered themselves with a shawl. However, said witness further pleaded ignorance as to whether it was a dark night or moon-lit night, so as to see the accused. In view of the statement of eye witness Darshan Singh, it becomes clear that he was not in a position to even give description of the accused as they had covered themselves with a shawl. Thus, it becomes clear that the statements of two witnesses do not conclusively identify two accused to be the culprits of the incident. More so, when two accused were arrested by the Police on 13.12.1984, but identification parade was then conducted on 17.12.1984, i.e., after lapse of four days. 11. The two accused remained under the police custody till 14.12.1984. However, it is not only necessary to see as to whether identification parade was conducted properly, but it is further necessary to see as to whether two witnesses were having any descriptions of the accused, so as to identify them. Both the issues are crucial, for the reason that the accused were arrested after lapse of many days of the incident by the SHO, Richhpal Singh (PW. 11). However, Richhpal Singh (P.W. 11) himself made allegations against the two accused regarding fire on him and lodged one case under Section 307 of IPC. The case so initiated by the SHO Richhpal Singh against two accused was, then found to be false. Thus, taking note of this fact, identification of the arrested gets more importance. The accused, in their statements, stated that they were shown to the witnesses before identification. Thus, in these circumstances, identification cannot be said to be proper. However, even if it is believed that identification parade was conducted without showing the accused to the witnesses, the question again comes as on what basis two accused were identified by the witnesses. If the two would have been seen by the witnesses on the scene of the occurrence, then at least, in the First Information Report, their descriptions should have been given. However, the FIR does not contain any such description. If the two would have been seen by the witnesses on the scene of the occurrence, then at least, in the First Information Report, their descriptions should have been given. However, the FIR does not contain any such description. Thus, it becomes very doubtful as to whether in a dark night, two accused were properly seen by the witnesses, more so, PW 8 Darshan Singh, in his statement, admitted that those two accused had covered themselves with a shawl, thus, he could not see as to what clothes they were wearing, meaning thereby that two witnesses could not have been identified other than by way of their description, because in the FIR, it has not been reported that their faces were seen by the witnesses, rather it has also not been stated that out of two accused, one was one-eyed person. Thus, in those circumstances, it is not clear as to on what basis, two accused identified by the witnesses. Therefore, identification of accused cannot be given any credence. More so, when accused were arrested after many days of occurrence, at the instance of none else but SHO with whom there was already a case with the same accused. 12. In view of the facts narrated above, we find it difficult to agree with the finding recorded by the trial Court, because other than fact of death of Amar Singh, after sustaining many injuries found as per the post-mortem report, there exists no conclusive evidence to prove prosecution beyond doubt. Even as per the statement of Dr. 12. In view of the facts narrated above, we find it difficult to agree with the finding recorded by the trial Court, because other than fact of death of Amar Singh, after sustaining many injuries found as per the post-mortem report, there exists no conclusive evidence to prove prosecution beyond doubt. Even as per the statement of Dr. Raj Kumar Singhal (P.W. 7), Amar Singh had sustained many injuries which are as follows : Ckkgjh pksVsa 1- ysljsVsM owUM dk ( izos'k ) }kj vk/kk bap X vk/kk bap X vk/kk bap rhljh jhc ds yscy ij chp dh ykbZu ls nks bap gVdj lhus ds ck;ha rjQ ?kko dh fn'kk vkxs ls ihNs dh rjQ Fkh rFkk ck;as ls nk;sa dh vksj Fkh ekjftul buojVsM FksA 2- ysljsVsM owUM ( izos'k ) vk/kk baPk X vk/kk bap X peMh dh xgjkbZ rd ck;ha vksj Nkrh ij fuiy ls <+kbZ bap nwj baVhfj;j ,Xtyjh ykbZu ds mijA 3- ysljsVsM owUM ( izos'k ) vk/kk baPk X vk/kk bap X1/4 bap pksV ua0 ds ,d bap uhps o bap fuiy ls nwj baVhfj;j ,Xtyjh ykbZu ds mij ?kko dh fn'kk vkxs ls ihNs o ck;sa ls nk;sa FkhA 4- ysljsVsM owUM ( izos'k ) vk/kk bap X vk/kk bap X lok nks bap nkfgus vkSj lhus ij NBs buVjdkslVy Lis'k ij chp dh ykbZu ls Ms< bap nwj ?kko dh fn'kk vkxs ls ihNs o ck;sa ls nk;as FkhA 5- ysljsVsM owUM izos'k vk/kk baPk X vk/kk bap X Ms< bap Nkrh ds nk;ha vksj lkros bUVjdkslVy Lis'k ij chp dh ykbZu ls ikSus nks bap gVdj ?kko dh fn'kk vkxs ls ihNs dh vksj o ck;sa ls nk;sa FkhA 6- ysljsVsM owUM ( izos'k ) vk/kk baPk X vk/kk bap X1/4 bap cka;s cktw ds ihNs dh rjQ vUn:uh fgLls ij dksguh ds tksM+ ls lk<+s 3 bap uhpsA 7- ysljsVsM owUM ( izos'k ) vk/kk baPk X vk/kk bap X lk<+s 3 bap cka;h tka?k ij D;wfcdD;wcjdy ls <+k+bZ bap uhps ckgjh o vUnjh fgLls ijA lHkh ?kkoksa ds ekjftul buojVsM FksA ?kko ij Cysdfuax o VsVfoax ugha FkhA ?kko ds ikl cky >qyls gq,s ugha FksA deht o cfu;ku ds lwjk[k ?kkoksa ls esy [kkrs gq, FksA diM+ksa ij dkfy'k dk fu'kku ugha FkkA diM+s [kwu ls Hkjs gq, FksA vUn:uh pksVsa 'ko dks [kksyus ij nk;ka QsQM+k ds uhps dk yksc ij ysljsVsM owUM FkkA rFkk dsosVh esa [kwu Hkjk gqvk FkkA ck;as QsQMs dk uhps dk fgLlk Hkh dqpyk gqvk Fkk o ysljsVsM owUM FkkA dsosVh esa [kwu Hkjk gqvk FkkA gkVZ ds utnhd vlsUMhx gjvksVk ysljsVsM Fkk ( dqpyk gqvk ) FkkA isjhVksfu;e dh dosVh esa [kqu FkkA yhoj dk nk;ka yksc ysljsVsM ( dqpyk gqvk ) FkkA 'ko ijh{k.k esa ?kko esa ls 3 iSysV fudkys x;s tks eSaus lhy djds iqfyl dks ns fn;sA ftuesa ls ,d iSysV nk;sa QsQM+s esa ls o nks iSysV ikslVhfj;j ,Xtyjh ykbZu dh psLV oky esa ls fudy x;s FksA ijh{k.k ds oDr e`R;q dh vof/k 4 ls 24 ?kUVs ds Hkhrj dh Fkh esjh jk; esa e`R;q dk dkj.k vUn:uh gsejst Qk;j vkeZ dh pksVksa }kjk OgkbVy vkxZul tSls QsQMs+ yhoj o vjksVk ij dkfjr pksV ds dkj.k vk;s 'kkd ls gqbZ FkhA pksV ua0 1 ls 5 vyx&vyx o la;qDr :Ik ls izd`fr ds lk/kkj.k vuqdze esa e`R;q dkfjr djus ds fy, iz;kZIr FkhaA bu pksVksa ds yxus ls e`R;q rqjUr gqbZA 13. Even if this piece of medical evidence is examined in the light of statements of witnesses, then also, we find that the statements are not corroborated by the medical evidence. According to the statements of witnesses, Amar Singh sustained only one fire, whereas injury report shows many -injuries on the person of the deceased Amar Singh and the prosecution has not clarified as to how those injuries were received by Amar Singh. Thus, there is a clear contradiction between the statements of eye witnesses and medical evidence which is again being ignored by the learned trial Court. 14. In view of the above facts, we are not in agreement with the finding recorded by the learned trial Court. The prosecution has failed to prove its case against the accused beyond doubt, rather there exists no evidence to the effect as to out of two accused, which of the accused had opened fire causing death of Amar Singh and now, Subhan Khan, having died, thus conviction of other appellant Jan Mohammad cannot be maintained in the light of the discussions made above and even if entire prosecution case is also taken, then also, in absence of specific allegation against appellant Jan Mohd. opening fire on Amar Singh, conviction against him cannot be maintained. The prosecution case falls short of proving their case against the accused, therefore, we are of the opinion that the judgment of the trial Court deserves to be quashed and set aside. 15. Consequently, we set aside the judgment of the trial Court, while allowing the appeal of the appellant Jan Mohammad. Since appellant Jan Mohammad was bailed out, thus he need not to surrender and his bail bonds are ordered to be discharged.Appeal allowed. *******