JUDGMENT 1. - This appeal under Section 374 Cr.P.C. has been preferred against the judgment and Order dated 24th January, 2001 passed by the learned Sessions Judge, Kota in Sessions Trial No. 368/2001, whereby the accused appellants have been convicted for commission of offence under Section 302/149 IPC for committing murder of Vinod Sio Bhanwar Singh and sentenced to suffer life imprisonment. 2. The prosecution story is that on 16th May, 1998 a message was received in the Police Station, Gumanpura, Kota from Prahlad Singh, Constable of Police Post, MBS Hospital, conveying that occurrence has "taken place. This information was recorded at SI. No. 1018 in the 'Rojnamcha', showing the time of receipt of information as 11.15 PM. On this information, Abdul Rashid, Assistant Sub Inspector was sent to the Hospital, where Bhanwar Singh, PW 5 father of the deceased, submitted written report, Ex.P8 to Abdul Rashid ASI. 3. In the report, Bhanwar Singh, father of the deceased, has stated that on 16th May, 1998 at 10.45 PM he along with his son Vinod after taking meal left for walking and went towards temple of Chambleshwar Mahadev. While they reached near Frontier Bhawan, they found Nasru @ Nasir and Sabir standing near electric pole. One Hero Honda Splender Motor cycle of black colour was also parked near to them. Two more bikes were also parked at some distance, one was Yamaha and another was Hero Honda Splender. Two boys were sitting on each of the vehicles. While Sabir saw Vinod Singh, he uttered to catch him and kill him today. He picked up the sword in his hand which was lying in his motor cycle. Nasir took knife in his hand and opened it. Both the accused while using abusive language came near to his son. He tried to intervene, but in the mean-time, accused Sabir with sword and Nasir with knife started inflicting injuries. He cried. A few persons came there, but remained standing at a distance. None of them intervened to save the life of his son. While accused were beating, his son ran away to save his life. While he was running, two boys who were sitting on each of the motor cycles encircled him and again started inflicting injuries with weapons. Sabir inflicted injury on the left side of abdomen, while Nasir on the right side. They abused him also. While accused were beating, his son ran away to save his life. While he was running, two boys who were sitting on each of the motor cycles encircled him and again started inflicting injuries with weapons. Sabir inflicted injury on the left side of abdomen, while Nasir on the right side. They abused him also. At this stage, some boys came on the spot, the names of those boys are not known to him. Blood was oozing from the injuries of Vinod inflicted by the accused. Immediately after the occurrence, he with the assistance of these boys who appeared on the spot took injured Vinod in a autorickshaw to the Hospital, where the Doctor declared him brought as dead. This statement was taken by Abdul Rashid to the Police Station, on the basis of which FIR No. 327/98, Ex.P-10 was registered and investigation started. During investigation, the dead body was taken in possession and 'Panchnama' was prepared. Six accused were taken in custody. Sabir made disclosure statement and on his disclosure statement, sword was recovered. Similarly knives were recovered from Nasir and Nadim accused. Three motor cycles were also recovered and seized. Incriminating weapons were sent to Forensic Science Laboratory and its report has been received. Challan was presented before the Court. 4. The trial Court framed charges for commission of offence under Sections 148, 302 and 302/149 IPC against all the accused and trial commenced. The prosecution cited 18 witnesses to prove the guilt, out of them 17 have been examined and out of 17 witnesses, 3 have been declared hostile. On appreciation of evidence, the trial Court acquitted four accused and convicted and sentenced the appellants for commission of offence under Section 302/34 IPC. 5. Appeal has been preferred on the ground that the trial Court has not properly and legally appreciated the evidence produced by the prosecution. Though the trial Court did not believe the statement of Bhanwar Singh, PW 5 so far as accused Nadim is concerned, this statement could not have been relied for other accused also. The trial court has not believed the recovery of sword and knife also, therefore, there was no connecting evidence for commission of offence by the accused. 6. Heard learned counsel for the parties and perused the record. 7. The trial court has not believed the recovery of sword and knife also, therefore, there was no connecting evidence for commission of offence by the accused. 6. Heard learned counsel for the parties and perused the record. 7. On perusal of the record, we find that four witnesses, namely PW 1 Kemal Singh, PW 2 Hiralal, PW 5 Bhanwar Singh and PW 17 Chandra Singh have been cited in the challan and examined by the prosecution as eye witnesses to the occurrence to prove the guilt against the accused. Out of he four eye witnesses, PWs 1, 2 and 17, namely Kamal Singh, Hiralal and Chandra Singh, respectively have been declared hostile. The only eye witness which remains to be appreciated is PW 5 Bhanwar Singh, father of the deceased. 8. So far as recovery of sword and knives is concerned, it has been made from an open field from a trunch where weapons were buried in clay. It is stated in the recovery memo that it is no blood stained but clay coated. These were sent for forensic report. The Forensic Science Laboratory has reported that knives do not contain any blood, whereas the sword is having human blood. It is quite contradictory against seizure memos wherein it has been specifically recorded that sword recovered is not blood stained. The recovery of three motor cycles from three accused i.e. Sabir, Nasir and Ashwani has been proved by the Investigating Officer. Prosecution witness Nand Lal who was cited in the challan to prove the Inquest Report has also been dropped and not examined. 9. On appreciation of the aforesaid evidence, the prosecution case now hinges and revolves around PW 5 Bhanwar Singh, eye witness to the occurrence. Bhanwar Singh in his statement before the Court has supported his written report handed over by him to Abdul Rashid, Assistant Sub Inspector. However, in cross examination he has stated that he disclosed the occurrence first of all to the Police Post situated in the Hospital. He has also stated that he personally went to the Police Station and narrated the incident to Inspector Sharma, who recorded it in the Rojnamcha This Rojnamcha has not been produced and exhibited by the Investigating Officer and also attributed no knowledge about it when he was asked about it. He has also stated that he personally went to the Police Station and narrated the incident to Inspector Sharma, who recorded it in the Rojnamcha This Rojnamcha has not been produced and exhibited by the Investigating Officer and also attributed no knowledge about it when he was asked about it. Bhanwar Singh, PW 5 has also stated in his statement that while they took the deceased to the Hospital in auto-rickshaw with the help of eye witness Chandra Singh and auto rickshaw driver. Their hands and clothes got blood stained. The prosecution has not seized the blood stained clothes of any of these persons, including that of Bhanwar Singh, PW 5 and it has also not to been disclosed as to why these were not seized. Even the auto-rickshaw driver has not been cited as a witness. Prosecution witness Prahlad who has conveyed the information to the Police Station, on the basis of which inquest report came to be prepared and recorded at 10.15 AM has also not been cited by the prosecution as a witness. 10. Bhanwar Singh, PW 5 needs corroboration to prove the case beyond shadow of doubt. Eye witnesses i.e. PW 1 Kemal Singh, PW 2 Hiralal and PW 17 Chandra Singh have not supported the prosecution case and could not be corroborative evidence to the statement of PW 5 Bhanwar Singh. Corroborative evidence in this case could be the medical evidence and the weapons of offence. The recovery of weapons of offence has been disbelieved by the trial Court for the reason that these were recovered from an open field where every body could have the access. These weapons of offence i.e. Sowrd and knives recovered at the instance of accused were not blood stained. If injuries have been caused by these weapons, the weapons are bound to have blood stains. The trial Court, therefore, has rightly disbelieved the recovery of weapons used for commission of offence. We also see that this evidence is not inspiring any credence and is not safe to rely for commission of offence by the accused. 11. Another facet of this case is that weapons of offence were deposited in the 'Malkhana' and the prosecution has not explained as to on which date these weapons of offence were deposited in the Malkhana. We also see that this evidence is not inspiring any credence and is not safe to rely for commission of offence by the accused. 11. Another facet of this case is that weapons of offence were deposited in the 'Malkhana' and the prosecution has not explained as to on which date these weapons of offence were deposited in the Malkhana. It has come in the evidence that on 20th August, 1998 the weapons of offence i.e. Sword and knives duly sealed were sent to the Forensic Science Laboratory through Mohan Lal, PW 10, who has stated that he kept these weapons with him for a night. There is no evidence with regard to the seal, with which the weapons of offence were sealed, whether the seal has been sent to the FSL or retained in the Malkhana or kept under 'Supurdagi' of some independent person. This causes serious cloud on the recovery of the sword. The sword recovered was not blood stained and the FSL has reported that the sword is blood stained, which shows that no proper care has been taken by the prosecution of the weapons to the extent whether the sword is blood stained. If the sword recovered was not blood stained, how the FSL has report it as blood stained. It shows that blood was coated after recovery. Where there are such lacunae and loop wholes in the prosecution story, the Supreme Court in the case title Mahmood v. State of U.P., reported in AIR 1976 SC 69 has observed as under : "...the investigator, did not take all necessary precautions which could be taken to eliminate the possibility of fabrication of his evidence, or to dispel suspicion as to its genuineness. Admittedly, he sealed the box with his own seal which thereafter remained with him throughout. He did not take the signatures of the witnesses on the parcel containing the gandasa. He did not after sealing the parcel entrust, his seal to Sarpanch or any other respectable person of the village." 12. The rejection of this evidence by the trial Court is, therefore, justified. The prosecution, therefore, has not been able to connect the accused with the commission of offence so far as the use of weapons is concerned for causing injuries to the deceased. 13. The rejection of this evidence by the trial Court is, therefore, justified. The prosecution, therefore, has not been able to connect the accused with the commission of offence so far as the use of weapons is concerned for causing injuries to the deceased. 13. The statement of Bhanwar Singh, PW 5 is not corroborated by any other evidence, either by the eye witnesses or by the weapons of offence. The weapons of offence, during the stage of investigation or before the trial court have not been shown to the Doctor to obtain his opinion as to whether such injuries could be caused by the weapons recovered by the prosecution. 14. There is another loop whole in the prosecution case that motive for causing injuries and killing is that parties have litigation between themselves. No evidence with regard to litigation between the parties has come on record. The prosecution, therefore, has not discharged this burden also. 15. The information conveyed by prosecution witness Prahlad was received at the Police Station at 11.15 PM. The FIR has been registered on the basis of written report of Bhanwar Singh, PW 5 wherein the occurrence has been shown to have taken place at 10.45 PM which is not possible for the simple reason that he has furnished information to Abdul Rashid, Constable at 11.30 PM and Prahlad has conveyed the information which has been received and recorded in the Rojnamcha showing the time 11.15 PM, therefore, occurrence could not have been before the filing of FIR or the Inquest Report. It has not been proved whether it is factual mistake or loop whole in the prosecution story. 16. For the aforesaid reasons, we do not find that the prosecution has proved the case beyond shadow of doubt. The findings recorded by the trial court, therefore, are not sustainable. The judgment of the trial court convicting and sentencing the accused appellants, namely, Sabir @ Bhooriya and Nasir @ Nasrudeen for commission of offence under Section 302/34 IPC is set aside. The accused appellants are acquitted of the charge and are directed to be released forthwith.Appeal is accordingly allowed.Appeal Allowed. *******