JUDGMENT 1. 1. By filing instant criminal appeal under Section 374 Criminal Procedure Code, the accused appellants have challenged the judgment of conviction and sentence dated 24.2.2003 passed by learned Additional Sessions Judge (Fast Track) No.2, Jaipur City (for learned 'Trial Court') in Sessions Case No. 108/2001, whereby it convicted the accused appellants as under:- Accused appellant No.1 Bhawani Singh:- Section 304 & 109 Indian Penal Code : Rigorous Imprisonment for ten years and a fine of Rs. 1,000/-. In default of payment of fine, he shall undergo six months' Simple Imprisonment. Section 29 of the Indian Arms Act:- Three years Rigorous Imprisonment and a fine of Rs. 500/-. In default of payment of fine, he shall undergo Simple Imprisonment for one month. Accused appellant No.2 Gopal Singh:- Section 304 Indian Penal Code : Rigorous Imprisonment for ten years and a fine of Rs. 1,000/-. In default of payment of fine, he shall undergo six months' Simple Imprisonment. Section 27 of the Indian Arms Act:- Three years Rigorous Imprisonment and a fine of Rs. 500/-. In default of payment of fine, he shall undergo Simple Imprisonment for one month. All the sentences were ordered to run concurrently. 2. Brief facts of the case are that on 8.2.1997 informant Kesar Lal submitted a written report (Ex.P6) at P.S. Vaishali Nagar, Jaipur to this effect that his brother Lal Chand after standing on his land was cutting the tree. Suddenly, Bhawani Singh s/o Dr. Sardar Singh alongwith Gopal Singh, Driver came there. They gave beating near about 1:20 PM. This occurrence has been seen by Madan Lal and Ashok Kumar. He further mentioned in the report that Bhawani Singh told Gopal Singh, Driver that he should give a gun shot, as the gun was with Gopal Singh Driver. Upon this he (Gopal Singh) immediately caused gun shot on Lal Chand, the result of which his brother died at the spot. 3. The Police on the basis of this written report, registered an FIR No. 42/2007, for the aforesaid offences. 4. Th e police after investigation submitted challan against the accused appellants for the aforesaid offences. 5. The learned trial court framed the charges against the accused appellants. They pleaded not guilty and claimed to be tried in the matter. 6. 3. The Police on the basis of this written report, registered an FIR No. 42/2007, for the aforesaid offences. 4. Th e police after investigation submitted challan against the accused appellants for the aforesaid offences. 5. The learned trial court framed the charges against the accused appellants. They pleaded not guilty and claimed to be tried in the matter. 6. The prosecution in support of its case produced as many as 18 witnesses including one Court witness namely Prem Sagar Manocha and certain documents were exhibited. Thereafter, the statements of the accused appellants under section 313 Criminal Procedure Code were recorded in which they stated that the police has falsely implicated them in the aforesaid case. 7. The learned trial court after hearing both the parties convicted and sentenced the accused appellants vide Judgment 24.2.2003 as mentioned above. The accused appellants being aggrieved with the impugned Judgment of conviction and sentence dated 24.2.2003 has preferred the instant criminal appeal. 8. Mr. S.R. Bajwa, Sr. Advocate, learned counsel appearing on behalf of accused appellant No.1 submits that prosecution has examined in this case nine eye witnesses namely; PW1 Madan Lal, PW2 Ashok Kumar Kumawat, P'W3 Gulab Chand, PW4 Mohan Lal Agarwal, PW5 Sita Ram, PW6 Kesar Lal, PW7 Pushpa Agarwal, PW8 Chandra Mohan and PW15 Neemnarayan. PW2 Ashok Kumar Kumawat, PW3 Gulab Chand, PW4 Mohan Lal Agarwal, PW7 Pushpa Agarwal and PW8 Chandra Mohan, who are said to be eye-witnesses of the occurrence and are also star witnesses, have not supported the case of the prosecution, have been declared hostile. The testimonies of PW1 Madan Lal, PW5 Sitaram PW6 Kesar Lal and PW15 Neemnarayan are contradictory to each other. On the one hand, PW1 Madan Lal and PW6 Kesar Lal, in their testimony have stated that appellant No.1, Bhawani Singh exhorted, appellant No.2 Gopal Singh to shoot Lal Chand (since deceased), but on the other hand PW5 Sitaram stated that the appellant No.1 Bhawani Singh fired at Lal Chand. But PW15 Neemnarayan, in his statement has stated that he did not know as to who had fired at the deceased but he further states in his testimony that PW3 Gulab Singh, was heard saying on the spot that appellant No.1 Bhawani Singh had fired the shot. It is important to mention here that PW3 Gulab Singh, has been declared hostile. Thus, the prosecution has come with two contradictory sets of evidence. It is important to mention here that PW3 Gulab Singh, has been declared hostile. Thus, the prosecution has come with two contradictory sets of evidence. One set claims that gun was fired by appellant No.1 Bhawani Singh and the other set claims that gun was fired by appellant No.2 Gopal Singh. (Underlined by me) 9. To support the case of appellant No.1 Bhawani Singh, learned counsel has placed reliance upon a case of (1) Har Chand Singh & Anr. Vs. State of Haryana, reported in AIR 1974 Supreme Court 344 , in which Hon'ble Apex Court has held as under: "If in a case the prosecution leads two sets of evidence, each of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation and thus acquitted on account of the fact that two contradictory sets of evidence had been produced by the prosecution." (Underlined by me) 10. PW1 Madan Lal, in examination-in-chief has stated about the specific role played by both the appellants but in cross-examination, this witness admits that he does not know the two accused persons and he had seen them for the first time on the date of occurrence and no test identification was even arranged. PW5 Sita Ram in his statement has stated that gun was fired by appellant No.1 Bhawani Singh but exactly this is not the case of the prosecution. Appellant No.1 Bhawani Singh has only been charged for abetting appellant No.2 Gopal Singh to shoot. PW6 Kesar Lal, who is the informant, speaks about the role of exhortation lay appellant No.1 but in cross-examination, he categorically states that appellant No.1 had already left the scene of occurrence when the witnesses reached there. He also admits that Lal Chand was already dead when the witness reached the scene of occurrence. He pleads ignorance about the details of the incident in respect of the things, which happened between the deceased and accused persons before actual fire. PW15 Neemnarayan has plainly admitted that he knows nothing about the act of shooting. 11. Mr. He also admits that Lal Chand was already dead when the witness reached the scene of occurrence. He pleads ignorance about the details of the incident in respect of the things, which happened between the deceased and accused persons before actual fire. PW15 Neemnarayan has plainly admitted that he knows nothing about the act of shooting. 11. Mr. Bajwa, Senior learned counsel further submits that in the instant case there is circumstantial evidence as prosecution has with held the proximate cause-the genesis of occurrence and it also not speak of any motive. There is no enmity between the deceased and the accused appellants. FIR Ex.P6 is hit by Section 162 Criminal Procedure Code because investigation had already commenced, accused has already been arrested and thereafter, Ex.P6 was field with the police. Site Plan Ex.P2 makes the prosecution story highly unnatural. As per site plan, deceased was hit when he was standing at Point X. Immediately behind the deceased, at point A.1 and A.2, were standing the two eye-witnesses namely; PW3 and PW4. Appellant No.1 Bhawani Singh was also standing at that very point. From the opposite side, at Point B, accused appellant No.2 is reported to stand from where he opened the fire. Obviously, accused appellant Bhawani Singh was in the range of the fire. Appellant No.2 Gopal Singh never take risk of injuring his own master. As per the site plan, PW3 Gulab Chand and PW4 Mohan Lal Agarwal, were the eye-witnesses of the assault and both have been declared hostile. 12. Of-course the bullet is reported to have been connected with the gun in question. But, no seizure memo of bullet was prepared. There is no evidence adduced about the safe custody of the bullet from the time of recovery, till it reached the laboratory. Neither the Malkhana-in-charge has been produced nor carrier to FSL has been produced. 'Link evidence' is completely missing. Ballistic Report is, thus, of no help to prosecution. To support this, learned counsel has placed reliance upon two judgments; 13. Firstly, (2) State of Rajasthan Vs. Daulat Ram, reported in AIR 1980 SC 1314 , Hon'ble Apex Court has held as under : "Samples of opium changing hands before reaching Public Analyst-Various persons in custody of samples not examined - Convicted not warranted- Prosecution cannot be allowed to correct lacuna at revisional or appellate stage." (Underlined by me) 14. Firstly, (2) State of Rajasthan Vs. Daulat Ram, reported in AIR 1980 SC 1314 , Hon'ble Apex Court has held as under : "Samples of opium changing hands before reaching Public Analyst-Various persons in custody of samples not examined - Convicted not warranted- Prosecution cannot be allowed to correct lacuna at revisional or appellate stage." (Underlined by me) 14. Secondly, the case of (3) Jasbir Singh V. State of Punjab, reported in AIR 1998 SC 1660 , Hon'ble Apex Court in head-note has held as under:- "Recovery of arms and live cartridges from accused- Pistol and cartridges recovered not having any distinctive mark - Not sealed after seizing - Identity of weapon and cartridges seized and that which were produced before Court thus not established by prosecution - Conviction cannot be sustained." (Underlined by me) 15. He further submits that no sanction to prosecute was obtained. Hence the conviction of the accused appellant is illegal. To support this case learned counsel has placed reliance upon Judgment of (4) Vijendra V. State of Delhi, reported in 1997 (2) Recent CR 257 , wherein the Court in the head-note has held as under : "Prosecution and conviction of accused under Section 25 of the Arms Act - No previous sanction for such prosecution as required under Section 39 produced during trial - Conviction not sustainable." (Underlined by me) 16. For the charge under Section 109 Indian Penal Code, prosecution has miserably failed to prove the fact of exhortation. Out of nine eye witnesses, only PWI Madan Lal and PW6 Kesar Lal, speak about the exhortation. PW1 Madan Lal admits in cross-examination that he did not know me from before. He had seen me for the first time on the date of occurrence. Thereafter he saw me in the Court. No test identification was arranged. Such identity is of no help. The other witness PW6 Kesar Lal in cross-examination unequivocally admits that his brother was already dead when the witness reached there and that the accused had already left the scene when he reached there. Otherwise also the evidence of so-called 'Lalkar' is very weak type of evidence. 17. No test identification was arranged. Such identity is of no help. The other witness PW6 Kesar Lal in cross-examination unequivocally admits that his brother was already dead when the witness reached there and that the accused had already left the scene when he reached there. Otherwise also the evidence of so-called 'Lalkar' is very weak type of evidence. 17. To support this case, learned counsel has placed reliance upon following judgments : A. (5) Jainul Haque V. State of Bihar, reported in 1974(3) SCC 543 , wherein in para 9 Hon'ble Apex Court has held as under : "It would appear from the above that there is a clear discrepancy between the evidence of the witnesses given at the trial and the version given in the first information report regarding the part played by the appellant. The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the prosecution evidence on the point that the appellant had joined in the assault of Lelyaquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that the appellant had exhorted the other accused to assault Levaquat, the High Court in our opinion, should not have convicted the appellant for the offence under Section 323 read with Section 114 Indian Penal Code. The High Court has found the evidence of eye-witnesses to be unsatisfactory. It has also been found that the eye-witnesses were prone to exaggerate things and to involve as many accused as possible. In the circumstances, it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to 'that person an exhortation to the assailant to assault the victim. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to 'that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction of abetment can be recorded against the person alleged to have exhorted the actual assailant. The evidence adduced at the trial in respect of the part alleged to have been played by appellant is contradictory and far from convicting. We would, therefore, accept the appeal, set aside the conviction of the appellant and acquit him." (Underlined by me) B. (6) Mohd. Anwar Vs. State of Delhi, reported in (2000) 1 SCC 615 , wherein Hon'ble Apex Court in para 10 has held as under : "10. Now we would deal with Criminal Appeal No. 1175 of 1959 filed by Tasleem. He has been convicted for the offence punishable under Section 302 read with Section 34 Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/-. He is also convicted for the offence under Section 307 read with Section 34 Indian Penal Code and sentenced to suffer RI for 5 years and to pay a fine of Rs. 500/- and under Section 5 TADA (P) Act, 1987 to undergo RI for 5 years and to pay a fine of Rs. 500/-. The learned counsel pointed out that the appellant is in jail since the day of offence i.e. 19.9.1992 and he has already undergone the sentence for the offence punishable under Section 307 Indian Penal Code and Section 5 of the TADA (P) Act. He, therefore, submitted that assuming that.the said conviction is valid yet there was no reason for convicting the accused for the offence punishable under Section 302 read with Section 34 Indian Penal Code solely on the alleged ground that Tasleem had exhorted as alleged, particularly when the police had falsely involved four other persons, who were required to be discharged. For this purpose, we are also taken through the evidence of all the witnesses. From the evidence on record, the role assigned to Tasleem is that he was accompanying Anwar and that he was having a pistol in his pocket. For this purpose, we are also taken through the evidence of all the witnesses. From the evidence on record, the role assigned to Tasleem is that he was accompanying Anwar and that he was having a pistol in his pocket. When they were chased and cornered, both took out their firearms and it is alleged that Tasleem uttered the words "Mara Salon Ko". Question is, whether the prosecution has established the said part of its version beyond reasonable doubt. For this purpose, it can be noted that PW1 AST Raghbir Singh had not gone specifically stated that Tasleem exhorted Anwar by using the words "maro salon ko". He has only stated that Mohd. Anwar took out a revolver and Mohd. Tasleem took out a country-made pistol on seeing the police party and fired at them. Thereafter, he has improved and stated that Anwar fired at the instance of Tasleem. The Court while recording the evidence has noted tha the witnesses has identified Tasleem as Anwar and Anwar as Tasleem. It is true that PW10 HC Jagpal Singh, PW 13 SI Shiv Lal, PW 13 Constable Satbir Singh and PW 16 Constable Devendar have deposed to the effect that Tasleem had exhorted the other boys by uttering "maro salon ko". AST Raghbir Singh has specifically not deposed that Tasleem had exhorted and thereafter Anwar fired from his revolver, which caused injuries to the deceased. PW 10 Jagpal Singh has in his examination-in-chief merely stated that after chasing the accused when they stopped the vehicle, Tasleem told his companions to shoot them. He has not specifically used the words "maro salon ko". In his cross-examination, he has stated that when Khalil got down from the vehicle, the accused shouted "maro maro". He was contradicted with his Section 161 statement, but as the investigating officer is not examined, nothing can be stated about that part of the evidence. Further, the prosecution version is that both the appellants along with other persons had gone near Naulakha House for allegedly committing dacoity. However, that would not mean that after being chased by the police party the accused were having any common intention to kill the chasing party. There is nothing on the record to establish that by the alleged firing by Tasleem injury was caused to anyone. Hence, we do not discuss the other contention raised by learned counsel, Mr. However, that would not mean that after being chased by the police party the accused were having any common intention to kill the chasing party. There is nothing on the record to establish that by the alleged firing by Tasleem injury was caused to anyone. Hence, we do not discuss the other contention raised by learned counsel, Mr. Sushi] Kumar that from Tasleem a tamancha was not recovered or, in any case, the said recovery is not proved. Further, it is to be noted, that at the initial stage, six persons were charge-sheeted for the alleged offences. The learned Judge discharged four of them. In this set of circumstances, it would be unsafe to reply (sic 'rely'?) upon the evidence of prosecution witnesses that Tasleem exhorted or uttered the words "maro salon ko" as alleged and, therefore, Anwar fired from his revolver which caused injury to the deceased Khalil. From the facts and circumstances it would be difficult to infer that Tasleem was having any common intention to commit the crime for which Anwar is convicted. Hence, the conviction of Tasleem for the offence punishable under Section 302 read with Section 34 Indian Penal Code requires to be set aside." (Underlined by me) 18. Per-contra, Mr. B.N. Sandhu, learned PP for the State has controverted the aforesaid arguments and made a statement at Bar that the learned trial court has rightly convicted the accused appellants. 19. Mr. Sandhu, learned PP submits that as per the statements given by the prosecution witnesses, accused appellant Gopal Singh is the main accused, who has made fire upon the deceased Lal Chand, the result of which he died at the spot. This fact is affirmed by the PW1 Madan Lal, PW5 Sita Ram and PW15 Neem Narayan, in their testimony. 20. I have heard learned counsel for the accused appellants as well as learned PP for the State and carefully gone through the entire material made available to me including the aforesaid Judgments cited by the learned counsel. 21. So far as the case of accused appellant No.2 Gopal Singh is concerned, PW1 Madan Lai has clearly stated in examination-in-chief that Gopal Singh I rcd upon the deceased Lal Chand. PW6 Kesar lal, specifically stated in examination-in-chief and cross-examination that Gopal Singh had fired upon deceased Lal Chand. As per recovery memo Ex.P14, Gun was recovered from appellant Gopal Singh. PW6 Kesar lal, specifically stated in examination-in-chief and cross-examination that Gopal Singh had fired upon deceased Lal Chand. As per recovery memo Ex.P14, Gun was recovered from appellant Gopal Singh. One 'chappal' was recovered of accused appellant No.2 at the place of occurrence and another 'chappal' was recovered in the house of appellant Bhawani Singh, where the appellant Gopal Singh was sitting. 22. A bare perusal of the aforesaid facts would reveal that PW2 Ashok Kumar Kumawat, PW3 Gulab Chand, PW4 Mohan Lal Agarwal, PW7 Pushpa Agarwal and PW8 Chandra Mohan, who are said to be eye-witnesses of the occurrence and are also star witnesses, have not supported the case of the prosecution, have been declared hostile. So far as statement of PW1 Mohan Lal is concerned, he in his statement has clearly stated that appellant No.1 Bhawani Singh has not abetted appellant No.2 Gopal Singh to make a fire by gun and from the statement of this witness, it seems that accused appellant Gopal Singh is the main accused. So far as the statement of PW5 Sita Ram is concerned, his statements are contradictory from statements of PW1 Madan Lal and PW6 Kesar Lal. So far as the statement of PW6 Kesar Lal is concerned, this witness has specifically stated that appellant Gopal Singh has made fire upon deceased Lal Chand. 23. From the aforesaid facts it is clear that the learned trial court has wrongly convicted the accused appellant No.1 Bhawani Singh as he has not committed any offence. The main allegations are against the accused appellant No.2 Gopal Singh. 24. In view of the discussion made above, the appeal is partly allowed and the accused appellant No.1 Bhawani Singh is acquitted for the offence under Sections 304 and 109 Indian Penal Code as well as under Section 29 of the Indian Arms Act. The appellant No.1 Bhawani Singh is on bail, his bail bonds stand discharged but maintain the conviction and sentence of accused appellant No.2 Gopal Singh as awarded by learned Addl. Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur in Sessions Case No. 108/2001. 25. The impugned judgment of the trial Judge shall stand modified as indicated above."Appeal partly allowed. *******