Judgment S.A.Naqvi, J. ( 1. ) Challenge is to the judgment dated 27-12-97 passed by the First Additional Sessions Judge, Chhatarpur in Sessions Trial No. 95/96 whereby the appellants Ganesh @ Ganesha @ Ganesh Prasad and Kallu @ Hiralal have been convicted under Section 302 read with section 34 I.P.C and under Section 25 and 27 of the Arms Act and sentenced to undergo life imprisonment and three years rigorous imprisonment on each count respectively. ( 2. ) The prosecution case in short is that on 24-2-96 at about 2:30 p.m, Babu (PW-1) was going to the field Awadhiyahar. Ahead of Babu, wife of Bharose was also going, at this point of time, they heard sound of fire of katta and they saw that Bharose is running and the appellants were chasing him. At this juncture, appellant Ganesh fired upon Bharose as a result of which, he fell down. Bandra Chamar, Sundar Yadav, Bhura Yadav, Halki Bai wife of Mangi reached on the spot. The incident was narrated by Bharose to all these persons. On account of old enmity between Bharose and the appellants, Bharose done away by the appellants. Bharose succumbed to the injuries. ( 3. ) FIR Exhibit P-1 was lodged by Babu (PW-1). The inquest memo of dead body of Bharose Exhibit P-3 was prepared. Spot map Exhibit P-4 was prepared. Blood stained soil,control soil, lathi, pallet, one 12 bore shell, one brass bucket, one bed-sheet, one towel and one pair of shoes have been seized as per seizure memo Exhibit P-l3 from the spot. The post-mortem of the deceased was conducted by Dr. R.C. Malare (PW-8) and he found following injuries on his person:- " 1. Abrasion:- 5x3 cms right knee joint caused by rough object; 2. Abrasion:-4 x 2cm x left knee joint caused by rough object. Gun shot wound ante-mortem in nature: 1. Wound of entrance- 2 x 2 cm oval shaped right side scapular region (just below ) at level of 7th and 8th vertebra. Margin inverted. Blood comes out. Margin of wound slight black and some clotted blood also present. 2. Wound of Exit - 3 x 3 cm oval shaped. Margin erected blood comes out and clotted blood also present. Wound present. Middle of right chest." ( 4. ) Dr. Margin inverted. Blood comes out. Margin of wound slight black and some clotted blood also present. 2. Wound of Exit - 3 x 3 cm oval shaped. Margin erected blood comes out and clotted blood also present. Wound present. Middle of right chest." ( 4. ) Dr. R.C. Malare (PW-8) opined that the death of the decased Bharose was caused due to shock of gun shot injuries on the right side of chest and excessive hemorrhage and lacerated wound on right lung within 12-13 hourse since time of post-mortem. Appellants were arrested. As per Exhibit P-7,-the appellant Ganesh disclosed that he has kept one 12 bore katta and cartridge in a box in his house and is ready to get it recovered, as per memorandum Exhibit P-7. At the instance of the appellant Ganesh, one 12 bore katta and live cartridge have been seized as per seizure memo Exhibit P-8. The appellant Kallu @ Hiralal disclosed as per Exhibit P-11, that he has kept one 12 bore katta and one cartridge in his house and is ready to get it recovered. On 13-3-96, at the instance of the appellant Kallu @ Hiralal as per Exhibit P-l2, one 12 bore katta and live cartridge have been seized. The cloth of the deceased Bharose, two pallets were seized in sealed packet as per seizure memo Exhibit P-6. Seized articles were sent to FSL, Sagar for analysis. After completion of investigation, the appellants were charge-sheeted. Case was committed to the court of sessions for trial. ( 5. ) Learned Trial Court framed charges under Section 302 read with Section 34 I.P.C and 25 and 27 of the Arms Act; The appellants abjured the guilt and pleaded innocence and false implication. The prosecution examined 11 witnesses, two witnesses have been examined in defence. After hearing learned counsel for the parties, perusing evidence and material on record, learned Trial court convicted both the appellant under Section 302 read with section 34 I.P.C and 25 and 27 of the Arms Act and sentenced them hereinabove mentioned. Being aggrieved by the impugned judgment, the appellants have preferred the appeal. ( 6. ) We have heard learned counsel for the parties, perused the impugned judgment evidence and material on record. ( 7. ) Learned counsel for the appellants Ku. Namrata Kesharwani, vehemently argued that learned Trial court committed error in relying upon the testimony of prosecution witnesses. Being aggrieved by the impugned judgment, the appellants have preferred the appeal. ( 6. ) We have heard learned counsel for the parties, perused the impugned judgment evidence and material on record. ( 7. ) Learned counsel for the appellants Ku. Namrata Kesharwani, vehemently argued that learned Trial court committed error in relying upon the testimony of prosecution witnesses. Babu (PW-1) and Halki Bai @ Gorabai (PW-6) are not eye-witnesses, all the prosecution witnesses reached on the spot after the incident and they have not seen that the appellant Ganesha fired on the deceased Bharose and even they have not seen the appellant Kallu @ Hiralal armed with katta. The appellant Kallu was not present on the spot, he was in the primary school, Chanda and he appeared in practical examination. The shells (empty cartridge) found on the spot were not fired by alleged seized 12 bore kattas from the appellants. The shells and kattas i.e, articles which were received and examined by ballistic expert are not proved to be the same, allegedly recovered at the instance of the appellants. The witnesses are highly interested and learned Trial court erred in convicting the appellants and sentencing them. Per contra, learned Public Prosecutor, supported the impugned judgment and contended that learned Trial court did not err in convicting the appellants and sentencing them adequately. ( 8. ) Babu (PW-1), Bhura (PW-3), Halki Bai (PW-5), Halki Bai @ Gorabai (PW-6) deposed that Bharose was lying on the ground in injured condition and he was having a bullet injury over his back of the chest and he succumbed to the injuries. Inquest memo of the dead body of the deceased Bharose Exhibit P-3 reveals that Bharose deceased received gun shot injury. Dr. R.C. Malare (PW-8) on 25-2-96 conducted autopsy of Bharose and found gun shot injury on his person as per post-mortem report exhibit P-10 which is enumerated in foregoing paras. It is established by the evidence of this witness that Bharose sustained gun shot injury over his right scapular region just below the level of 7th and 8th vertebra and exit wound in the middle of the right chest. The cause of the death of Bharose was shock due to gun shot injury in right side of chest and excessive hemorrhage and lacerated wound on right lung. Certainly, the death of Bharose is homicidal in nature. The cause of the death of Bharose was shock due to gun shot injury in right side of chest and excessive hemorrhage and lacerated wound on right lung. Certainly, the death of Bharose is homicidal in nature. This fact has not been challenged by the learned counsel for the -appellants during the course of arguments. The evidence of these witnesses in this respect is reliable hence, it is proved beyond reasonable doubt that Bharose died due to gun shot injury and his death was homicidal in nature. The finding arrived at by learned Trial court in this respect is affirmed. ( 9. ) Babu (PW-1) deposed that at aboutu 2:30p.m, he was going to his field, he saw Halki Bai @ Gorabai (PW-6), wife of deceased Bharose was going to give him food. He heard a noise of fire, he saw that appellants Ganesh and Kallu were chasing Bharose armed with 12 bore katta. Deceased Bharose was coming running towards them. At this juncture, the appellant Ganesh fired at Bharose. The bullet struck on the back of Bharose and he fell down. Babu and Halki Bai @ Gorabai (PW-6) tried to rescue Bharose but the appellants intimidated them to fire on them. The appellants fled away from the spot then only Babu and Halki Bai @ Gorabai (PW-6) reached near him. Halki Bai (PW-5) also reached the spot. Bundra Chamar, Sunder, Bhura(PW-3) also reached there. Babu lodged FIR Exhibit P-1. Halki Bai (PW-6) corroborated the testimony of Babu (PW-1), she deposed that in the noon of fateful day, she and Babu were going to their field, she heard sound of fire and they proceeded ahead. They saw. that the appellants Ganesha and Kallu were chasing Bharose. The appellant Ganesha fired on Bharose who fell on the ground. They tried to rescue Bharose but the appellants intimidated them to fire on them. The appellants fled from the spot, then they reached near Bharose, she also further stated that Sunder Ahir, Bunder Chamar, Bhiira Ahir, wife of Mangi, wife of Bhagwa and wife of Halka reached on the spot. Bharose told them that Ganesha had fired on him. Babu and Halki Bai @ Gorabai (PW-6) deposed that there was enmity between the appellants and the deceased over a piece of land. Bharose told them that Ganesha had fired on him. Babu and Halki Bai @ Gorabai (PW-6) deposed that there was enmity between the appellants and the deceased over a piece of land. Babu is real brother of the deceased and Halki Bai @ Gorabai (PW-6) is wife of deceased hence, their testimony requires close scrutiny. Kamta Singh (PW-2), is writer of FIR Exhibit P-l. He also seized two sealed packets of clothes of the deceased and pallets as per seizure memo Exhibit P-6. Ramavtar (PW-9) turned hostile, he is witness of memorandum of appellant Kallu Exhibit P-11 and seizure of 12 bore katta and life cartridge as per seizure memo Exhibit P-12. Though, he has admitted the signatures on both these documents but he denied the factum of discovery and recovery of weapon and cartridge from the possession of appellant, Kallu. Ramesh Kumar (PW-11) proved the sanction Exhibit P-11 accorded by the District Magistrate, Chhatarpur to prosecute the appellants under the provisions of Arms Act. ( 10. ) P. L. Luharia (PW-10), deposed that on 4-3-96, he interrogated the appellant Ganesha who disclosed that he has kept katta and cartridge in a box and he is ready to get it recovered. He also deposed that at the instance of the appellant Ganesha, he recovered 12 bore katta and live cartridge as per seizure memo Exhibit P-8 and Memo of Ganesha is Exhibit P-7. PL. Luharia (PW-10), deposed that on 13-3-96, on interrogation of appellant Kallu, he disclosed that he has kept katta and cartridge in his house and he is ready to get it recovered as per seizure memo Exhibit P-11. He seized one katta and live cartridge at the instance of kallu as per seizure memo Exhibit P-12. Raju (PW-4) also corroborated the testimony of P.L. Luharia and deposed that on the information and at the instance of appellant Ganesha one katta and cartridge were seized. In para-4 of his cross-examination, Raju admitted that he was called by daroga (Police Inspector) who told him that he has seized one katta from the appellant Ganesh and he has arrested him, then daroga got his signatures on papers. He also specifically admitted that he has signed on the papers in primary school. Raju contradicted his own statement of examination-in-chief in respect of discovery and recovery of weapon and cartridge at the instance of appellant Ganesha in cross-examination. He also specifically admitted that he has signed on the papers in primary school. Raju contradicted his own statement of examination-in-chief in respect of discovery and recovery of weapon and cartridge at the instance of appellant Ganesha in cross-examination. Raju has not been declared hostile and prosecution is bound by his statement. Consequently, statement of Raju in respect of the factum of memorandum of the appellant Ganesha and seizure of weapon and cartridge at his instance is not reliable. The same position is in respect of memorandum Exhibit P-11 and seizure of weapon and cartridge Exhibit P-12 in respect of appellant Kallu because Ramavtar (PW-9) is not corroborating this fact. On going through the evidence of PL. Luharia, we are of the view that his statement cannot be relied upon without corroboration by independent evidence beyond doubt. Hence, seizure of 12 bore katta and live cartridge at the instance of the appellants is not proved beyond reasonable doubt and learned Trial court committed error in holding that one 12 bore katta and live cartridge have been seized from the possession of each of the appellant hence, we set aside the finding of learned Trial court in this respect. ( 11. ) PL. Luharia (PW-10) deposed that seized articles were sent to FSL, Sagar for chemical analysis. Report of senior scientist officer and Assistant Chemical Analyst FSL, Sagar Exhibit P-17 is on record.-It is proved by this report that alleged seized katta from the possession of the appellants were in running condition and they were fired successfully. It is also proved by this report that the shell(empty cartridge) which were seized from the spot were not fired from the alleged seized kattas which were allegedly seized from the possession of the appellants. From the document of prosecution itself, it is proved that the seized shell were not fired by the seized 12 bore kattas and they were fired by the smooth bore weapon. There is no evidence on record that the alleged seized kattas are of smooth bore weapon. These facts weakens the prosecution story and adversely effects the evidence of prosecution witnesses. ( 12. ) There is no evidence on record to prove that the seized 12 bore katta and cartridges were kept in Malkhana of police station in sealed condition. There is no evidence on record that the alleged seized kattas are of smooth bore weapon. These facts weakens the prosecution story and adversely effects the evidence of prosecution witnesses. ( 12. ) There is no evidence on record to prove that the seized 12 bore katta and cartridges were kept in Malkhana of police station in sealed condition. The alleged katta and cartridge were seized on 4-3-96 from the appellant Ganesh and on 13- 3-96 from the appellant Kallu. Though, this fact have not been proved beyond doubt, these articles were sent to FSL, Sagar, along with letter Exhibit P-l5 dt. 21-3-96 and sealed packets were received on 27-3-96. There is no evidence on record that from the date of seizure till 21-3-96 seized weapons were kept in police station Malkhana in sealed and safe condition and the same articles were sent to FSL, Sagar for chemical analysis. Malkhana-in-charge, has not been examined by the prosecution to substantiate these facts which casts doubt to the effect that whether the same weapons and cartridges were sent to FSL, Sagar for analysis or not. In Vijay Singh Vs. State of M.P. 2004(4) MPLJ 543 , it has held by the division bench of this court as under ;-"22. Shri Gupta, learned senior counsel by inviting out attention to Ex. P-7 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 barrel 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. Our attention has also been drawn to Ex. P-17 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. 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. P-17 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 same 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 December, 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 empty 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 there 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. 23-A. We would be failing in our duty if we don not place reliance on two decisions of the Apex Court Santa Singh Vs. State of Punjab AIR 1956 SC 526 and Mohd. Aman and another Vs. 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 Vs. State of Uttar Pradesh, AIR 1976 SC 69 wherein the Apex court has held that after sealing the parcel the seal should not remain with investigating agency. The latest pronouncement of the Apex Court on the point is State of Madhya Pradesh Vs. Ghudan, JT 2003 (Suppl. 2) 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 on the case of Modan Singh Vs. State of Rajasthan, AIR 1978 SC 1511 in this regard. " Hence, looking to the facts and totality of circumstances and the scenario emerged, it is doubtful whether the alleged seized weapons and cartridges were sent to FSL, Sagar for analysis,which weakens the prosecution case. If for the sake of argument, it is taken to be proved that one 12 bore katta and live cartridge has been seized from the possession of each of appellant, but it has not been proved beyond doubt that the same weapons and cartridges were sent for analysis, hence, the seizure of weapons from the appellants does not help in any way to the prosecution/respondents. ( 13. ) Halki Bai @ Gora Bai (PW-6) deposed that her husband deceased Bharose used to go early in the morning in the field, sometimes he used to take food in the house otherwise, she used to go to give food to him. ( 13. ) Halki Bai @ Gora Bai (PW-6) deposed that her husband deceased Bharose used to go early in the morning in the field, sometimes he used to take food in the house otherwise, she used to go to give food to him. She specifically admitted that when her husband takes food at home then she did not go to the field in the noon. She specifically deposed that on the fateful day her husband deceased did not come to take food at home, that is why she was going to give him food. Her jetth Babu (PW-1) also told her that he will accompany her. Babu also categorically stated that Halki Bai @ Gora Bai (PW-6) was going to give food to the deceased and he was with her. As per evidence of Babu and Halki Bai @ Gora Bai (PW-6) they were going to give food to the deceased Bharose because that day he has not taken either breakfast or food at home. But the fact of not taking breakfast or food by the deceased Bharose has been belied by the medical evidence. Dr. R.C. Malare, specifically deposed that there was undigested food present in stomach and digested food was present in small intestine. This fact is corroborated by the post-mortem report Exhibit P-10. Autopsy of deceased Bharose was conducted on 25-2-96 at 9:30 a.m, that is to say, next day of incident, Bharose died on 24-2-96 and that day undigested food was present in his stomach and digested food in his small intestine. Bharose died at about 2:30 p.m on 24-2-96 which means, he took meal or breakfast some hours before of his death on 24-2-96 which reveals that before going to the field deceased Bharose has taken breakfast or meal on the date of incident. Post-mortem report and evidence of Dr. R.C. Malare belies the evidence of Babu (PW-1) and Halki Bai @ Gora Bai (PW-6) to the effect that deceased Bharose has not taken meals, that is why they were going to field to give him food. Evidence of Halki Bai @ Gora Bai (PW-6) cannot be accepted beyond reasonable doubt in this respect. Babu (PW-1) also deposed that on the date of incident before going to the field deceased has not taken meal. Evidence of Halki Bai @ Gora Bai (PW-6) cannot be accepted beyond reasonable doubt in this respect. Babu (PW-1) also deposed that on the date of incident before going to the field deceased has not taken meal. We are of the considered view that the evidence of Babu (PW-1) and Halki Bai @ Gora Bai (PW-6) that they were going to give food to the deceased because he has not taken food at home in the morning does not inspire confidence. Halki Bai @ Gora Bai (PW-6) specifically deposed that if the deceased would have taken food before going to the field she never goes to field to give him food, which means on 24-2-96, there was no occasion of going to the field of Babu (PW-1) and Halki Bai @ Gora Bai (PW-6). Consequently, presence of Babu (PW-1) and Halki Bai @ Gora Bai (PW-6) becomes doubtful at the scene of occurrence at the time of incident. ( 14. ) Halki Bai @ Gora Bai (PW-6) in paragraph-7 of her cross-examination specifically deposed that he asked her husband that who has fired on him then he told that Ganesha has fired on him. She also admitted that her jetth Babu (PW-1) also asked the deceased that who has fired on him. She also deposed that her husband told the other persons that Ganesha has fired upon him. If Babu(PW-l) and Halki Bai @ Gora Bai (PW-6) would have been eye-witnesses and if they have seen that Ganesha has fired on the deceased, then there was no occasion to ask by them to the deceased that who has fired on him. This fact shows and creates doubt on the testimony of Babu (PW-1) and Hlaki Bai @ Gora Bai (PW-6) that they are eye-witnesses and they have seen the incident and in their presence the appellant Ganesha fired on the deceased. There is sufficient evidence on record that due to irrigating the field there was enmity between the appellants and Babu and the deceased. There is every possibility that due to enmity Babu and Halki Bai @ Gora Bai (PW-6) are roping the appellants in the offence. ( 15. ) Since beginning the defence of the appellant Kallu @ Harilal is that at the time of incident he was not present at the place of incident and at that time he was appearing in practical examination. ( 15. ) Since beginning the defence of the appellant Kallu @ Harilal is that at the time of incident he was not present at the place of incident and at that time he was appearing in practical examination. Jagye Prasad (DW-1) on 24-2-96 was Assistant Teacher in Govt. Boys School, Chandla. Appellant Kallu @ Harilal was student of 12 standard at the relevant time. Jagye Prasad on 24-2-96 took attendance of the students. He specifically deposed that Kallu @ Harilal was present in the class and he appeared in practical examination. He also deposed that the time of practical examination was 7:30 to 10:30 a.m. After practical exams there was viva the roll no. of appellant Kallu @ Hiralal was 20802688 which was entered in list of students who appeared in practical exams. In the list of students, the name of appellant Kallu @ Hiralal appears at serial no.4 which shows that on 24-2-96, he appeared in practical exams. Jagye Prasad took attendance on that date twice. Evidence of Jagye Prasad is corroborated by Exhibit D-1C, Exhibit D-2C, Exhibit D-3C and Exhibit D-4C. Learned Trial court disbelieved the evidence of Jagye Prasad on the ground that at one time he deposed that the time of practical exams was 12:00 noon and subsequently, he deposed that the time of practical exam was 10:30a.m, and there was every possibility that the appellant Kallu @ Hiralal would have reached the spot after appearing in the practical exams. We did not agree with the reasonings of learned Trial court in this respect, because there is no evidence on record that previous to the incident there was any quarrel between the deceased and the appellant or any incident with them which leads to the murder of the deceased Bharose. There is no evidence and circumstances on record to hold that the appellants before the incident conspired to murder deceased Bharose and they were having knowledge that Bharose will be at field or on way to the house at the relevant time. There is no evidence and circumstances on record to hold that the appellants before the incident conspired to murder deceased Bharose and they were having knowledge that Bharose will be at field or on way to the house at the relevant time. It is pertinent to note that the time of practical examination was 7:30 to 10:30 thereafter, there was a viva of students, though, the name of the appellant Kallu @ Hiralal appears at serial no.4 in the list of students, but it is known fact and it is matter of common knowledge that after practical exams and viva students remains in the school to know what was the score of other students hence, there is every possibility that after appearing in viva, the appellant Kallu @ Hiralal would have remained present in the school. Looking to the number of students who appeared in practical exams on 24-2-96 and in the facts and circumstances of the case, it would not be possible for the appellant Kallu @ Hiralal to reach the spot at 2:30 p.m. The distance of spot is 7 kilometers away from Chanda village. Looking to the distance of spot from Chanda village also strengthen the presumption that it was not possible that the appellant Kallu @ Hiralal would have reached on spot, at about 2:30 p.m. We are of the view that learned Trial court committed error in disbelieving the evidence of Jagye Prasad. Jagye Prasad is an independent witness and credibility of defence witness should also be scrutinised at par to prosecution witnesses. We are of the considered view that evidence of Jagye Prasad (DW-1) is reliable. Hence, the presence of appellant Kallu @ Hiralal is doubtful on the spot at the time of incident. Be it true, then evidence of Babu (PW-1) and Halki Bai @ Gora Bai (PW-6) is belied that the appellant Kallu @ Hiralal was present on the spot and he was also chasing the deceased Bharose. The evidence of Babu ( PW-1) and Halki Bai @ Gora Bai (PW-6) is very much doubtful on material points. ( 16. ) Bhura (PW-3) specifically deposed that when he reached on the spot, the deceased Bharose was alive but he did not depose anything about the incident. He is not corroborating the fact that Bharose or any other person told him that Ganesha has fired on him. Mst. ( 16. ) Bhura (PW-3) specifically deposed that when he reached on the spot, the deceased Bharose was alive but he did not depose anything about the incident. He is not corroborating the fact that Bharose or any other person told him that Ganesha has fired on him. Mst. Halki Bai @, Gora Bai (PW-6) and Babu (PW-1) categorically stating that just after incident along with Sunder Ahir Bandra Chamar, Wife of Mangi, Wife of Bhagwa and Bhura also reached on spot but Bhura is not corroborating the fact that the deceased Bharose told him that the appellant Ganesha has fired on him as stated by Babu(PW-l) and Halki Bai @Gora Bai (PW-6). Halki Bai (PW-5) also deposed that she was going to field, on way to the field, she saw that the deceased Bharose was lying on the spot. Bandra Chamar, Sunder, Bhura and three women were near Bharose, thereafter she went to the field. Halki Bai (PW-5) specifically deposed that she did not go near to Bharose and she did not listen Bharose telling anything. Halki Bai (PW-5) also contradicting the fact as stated by Babu (PW-1) and Halki Bai @ Gora Bai (PW-6) that Bharose told that the appellant Ganesha has fired on him. Strangely, Babu and Halki Bai @ Gora Bai (PW-6) did not narrate the incident to Bhura (PW-3) and Halki Bai (PW-5) for the reasons best known to them. Prosecution has not examined Bandra Chamar, Sunder, wife of Halka, Wife of Bhagwa and wife of Mangi which leads to the presumption that if they would have been examined by the prosecution, they would have gone against prosecution. Sunder is examined as (DW-2), he deposed that after hearing the sound of fire, he went on the spot, he saw that the deceased Bharose was lying on the field. The appellants were not on the spot, he went to village and informed about the incident to Babu (PW-1) and Ram Milan thereafter, Babu (PW-1) and Halki Bai@ Gora Bai (PW-6) reached on the spot. Babu (PW-1) and Halki Bai @ Gora Bai (PW-6) also admitted the presence of Sunder on the spot. The appellants were not on the spot, he went to village and informed about the incident to Babu (PW-1) and Ram Milan thereafter, Babu (PW-1) and Halki Bai@ Gora Bai (PW-6) reached on the spot. Babu (PW-1) and Halki Bai @ Gora Bai (PW-6) also admitted the presence of Sunder on the spot. As per discussion in foregoing paras, presence of Babu and Halki Bai @ Gora Bai (PW-6) is doubtful on spot at the time of incident hence, looking to the evidence of Bhura (PW-3) and Halki Bai (PW-5), evidence of Sunder appears to be reliable and there is every possibility that Babu and Halki Bai @ Gora Bai (PW-6) would have reached on spot after the incident. ( 17. ) To sum up and as per discussion, we are of the considered view that the evidence of Babu (PW-1) and Mst. Halki Bai @ Gora Bai (PW-6) do not inspire confidence and their presence on spot at the time of incident and the fact that they saw the appellant Ganesha and Kallu @ Hiralal chasing the deceased and the appellant Ganesha fired on the deceased Bharose is doubtful. FIR Exhibit P- 1 is not substantial piece of evidence. It can be used only for corroboration and proving the contradiction, omission and improvements in the statement of prosecution witnesses. Only on the basis of FIR conviction cannot be upheld. Consequently, we are of the view that prosecution has failed to prove beyond reasonable doubt that on 24-2-96, the appellants Ganesha and Kallu @ Hiralal chased Bharose and the appellant Ganesha fired on Bharose and committed his murder. Learned Trial Court committed error in relying upon the testimony of prosecution witnesses and convicting the appellants under Section 302 read with section 34 I.P.C and under Section 25 and 27 of the Arms Act. Consequently, the finding of conviction of appellants under aforementioned charges is hereby set aside and the appellants deserves to be acquitted ( 18. ) Consequently, the appeal has merit and deserves to be and is hereby allowed. The impugned judgment -of conviction of appellants and order of sentence under Section 302 read with Section 34 I.P.C and under Section 25 and 27 of the Arms Act is hereby set aside and the appellants are acquitted of charges levelled against them. The appellant Kallu is on bail. His bail bond stands discharged. The impugned judgment -of conviction of appellants and order of sentence under Section 302 read with Section 34 I.P.C and under Section 25 and 27 of the Arms Act is hereby set aside and the appellants are acquitted of charges levelled against them. The appellant Kallu is on bail. His bail bond stands discharged. The appellant Ganesh @ Ganesha @ Ganesh Prasad is in jail. If he is not required in any other criminal case, he be released forthwith. Appeal allowed.