JUDGMENT Hon’ble R.C. Deepak, J.—The present criminal appeal has been filed by Ziauddin alias Zia son of Hakim Najmuddin Ahmad resident of Katra Abu Turab Khan, Police Station Chowk, City Lucknow against his conviction and sentence dated 2.4.1979 passed by Sri G.N. Saxena, learned Additional Sessions Judge, Lucknow in Sessions Trial No. 52-A of 1975 whereby he convicted the accused-appellant under Section 302, IPC and sentenced him to life imprisonment and under Section 25 of Arms Act sentenced him 2 years R.I. 2. The brief facts of the case, as per prosecution, are that the co-accused Sirajuddin alias Siraj (convicted), who also preferred Criminal Appeal No. 392 of 1979, but same stood abated on 5.3.2004 on account of his death, was armed with revolver and the present accused-appellant armed with country made pistol came at the residence of Basharat Ali at Afeem Wali Gali within the limit of Police Station Chowk, City Lucknow. The co-accused Sirajuddin alias Siraj is said to have opened fire causing injuries to Basharat Ali whereas the accused-appellant was present there with country made pistol After sustaining the firearm injuries, the victim fell on the ground. Agha Huzoor, Mohsin Ali, Akhtar Ali Zaidi, Smt. Nazuk Jahan, Nasreen, Mahjabin and Meena are said to have witnessed the occurrence. The victim was managed to carry to the Hospital where he was declared dead. With these allegations, Agha Huzoor, the son of the deceased submitted an application on 23.9.1974 at Police Station Chowk, Lucknow and on the basis of which a case as crime case No. 904 of 1974 under Section 302, IPC was registered at 8.30 p.m. against the accused. 3. The investigation into the case was taken by Gyan Singh (PW 24). He visited the place of occurrence, took the dead-body in his possession, prepared the inquest (Ex Ka-36), recorded the statements of the witnesses and dispatched the dead-body in a sealed cover for post-mortem examination. 4. Dr. K.K. Singh (PW 7) conducted the autopsy on the dead-body and found the following injuries on his person : (1) Gunshot wound of entry 2 cm x 1 cm deep with blackening around left cheek unexploration passed in subonuscular plane through lower foraix and destroyed left eye entering anterior cranial feesa through gun one shot recovered from substance of left which is lacerated. 2. Abrasion 2 cm x 1 cm Right side eyebrow. 3. 2. Abrasion 2 cm x 1 cm Right side eyebrow. 3. Gunshot wound 8 cm x skin deep with blackening around passed superficially on left upper third placed obliquely in up and inward direction. Direction of (1) and (3) from left to right upward and posteriorly with blackening. 4. Gunshot wound of entry 1 cm x .7 cm left side upper part chest in 2nd intercestal spice at 12O clock position at 9 cm above left inpole on exploration piercing skin and muscle. According to the above named Medical Officer, Basharat Ali died due to shock and haemorrhage as a result of firearm injuries. The post-mortem examination report is Ex. Ka-5. 5. The above named investigating officer also recovered a country made pistol from the person of the accused appellant. The recovery memo is Ex. Ka -19 After completing the investigation, he submitted the charge-sheet Ex. Ka-32 against the accused. The charges were framed against them, who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined as many as 28 witness. Agha Huzoor (PW 1), Mohsin Ali (PW2) and Smt. Nazuk Jahan (PW4) are the witnesses of fact and remaining are formal ones. 7. The accused examined Smt. Qamar Jahan (DW 1), Bhahmadin Yadav (DW 2), Kanhaiya Lal (DW 3), Anandeshwar (DW 4), Karuna Shanker Saxena (DW 5) and Khawaja Mohammad Faiz (DW 6) as defence witnesses. 8. The trial Court after going through the evidence on record, convicted the co-accused Sirajuddin alias Siraj (died during the pendency of the appeal and his appeal already stood abated) and the present accused-appellant against which the present appeal has been preferred already referred to above. 9. Heard Sri Nadeem Murtaza, learned Counsel for the accused-appellant, Sri Satya Bhushan Verma, learned Additional Government Advocate for the State and perused the record. 10. It has vehemently been argued by the learned Counsel for the accused-appellant that the co-accused Sirajuddin alias Siraj and the present accused-appellant are real brothers and there is long standing enmity between the parties and they have falsely been implicated in the case. In this continuation, he further submits that whatever evidence may be, that is against the co-accused Sirajuddin alias Siraj to have caused firearm injuries to the deceased resulting into his death, but there is no evidence against the accused-appellant to have participated in the offence. In this continuation, he further submits that whatever evidence may be, that is against the co-accused Sirajuddin alias Siraj to have caused firearm injuries to the deceased resulting into his death, but there is no evidence against the accused-appellant to have participated in the offence. He also submits that the recovery of a country made pistol is false, fabricated and planted one. 11. On the other hand, learned Additional Government Advocate has strongly objected the arguments of the learned Counsel for the accused appellant expressing that there is evidence to the effect that the accused-appellant was present on the spot along with a country made pistol. 12. Now to examine the evidence, whether there is any evidence against the accused-appellant to have participated in the commission of the murder of the deceased and a country made pistol was recovered from his possession? 13. A perusal of the post-mortem examination report (Ex. Ka-5) would show that there are three gunshot wounds and one abrasion on the person of the deceased. One bullet was also recovered from the dead-body, but the same would have been caused with revolver by the co-accused Sirajuddin alias Siraj, as there is no evidence on record to show that the accused-appellant has also caused any injury to the deceased, as the statements of Agha Huzoor, Mohsin Ali and Smt. Nazuk Jahan do not show the accused-appellant to have opened fire upon the deceased or anyone else. The first information report and the statements of the prosecution witnesses indicate that the accused-appellant was present on the spot with country made pistol, but there is no evidence to the effect that he had any association with the co-accused Sirajuddin alias Siraj for this offence. It is an undisputed fact that there was long standing enmity between the parties, therefore, the false implication of the accused-appellant in the present case cannot be ruled out. It can very well be held that the accused-appellant did not participate in the commission of the murder of the deceased. 14. Now the crucial question which crops up for consideration is that whether a country made pistol was recovered from the possession of the accused-appellant or not? In the recovery memo (Ex Ka-19) Anand Lal son of Kishan Chand and Kumar son of Khushi Ram both residents of Dore Wali Gali, P.S. Chowk, Lucknow have been shown as witnesses of recovery. Now the crucial question which crops up for consideration is that whether a country made pistol was recovered from the possession of the accused-appellant or not? In the recovery memo (Ex Ka-19) Anand Lal son of Kishan Chand and Kumar son of Khushi Ram both residents of Dore Wali Gali, P.S. Chowk, Lucknow have been shown as witnesses of recovery. Anand Lal is said to be a public witness and S.H. Chauhan is the S.S.I. One other person appears to have signed the recovery memo in Urdu, but this signature is not of Abdul Majid or any of the witnesses cited therein. Anand Lal is a professional Police witness, as he stood a witness in other cases on behalf of the police. His testimony cannot be relied upon, as he is not independent for the purpose of this recovery. The peculiar feature of this case is that Ex. Ka-19 does not contain the signature of the accused-appellant and, therefore, it is no recovery in the eye of law. 15. In above view of the discussions, we hold that the recovery of country made pistol from the accused appellant is false. 16. Taken into account the arguments of the learned Counsel for the parties, the evidence on record and the prevailing circumstances, we are of the considered opinion that the order of conviction recorded by the trial Court is bad in law and deserves to be set-aside and it is accordingly set-aside. 17. The appeal is allowed. The bail bonds are canceled and sureties are discharged. The accused-appellant is on bail. He need not to surrender. The trial Courts record be sent back forthwith. ————