JUDGMENT 1. - This appeal has been preferred against the judgment dated 5.9.2002 passed by the learned Addl. District and Sessions Judge, No. 5, Kota in Sessions Case No. 159/2000 whereby he has convicted and sentenced the accused appellants for commission of offence under Section 302 of Indian Penal Code. 2. Prosecution story in brief is that Mohammad Hussain submitted a written report on 27.1.1992 at about 9.30 AM at Bada Hospital, Kota to the Station House Officer, Police Station, Vigyan Nagar, Kota who had come to the hospital for getting conducted post mortem of the deceased Mohammad Saleem. He has stated therein "that he and his elder brother came to open the shop situated in Motor Market styled as Kureshi Autometer Repair. The deceased Saleem sent the complainant to bring broom for clearing the shop from the opposite shop. While his brother Saleem was just to open the Shop, Ikram son of Mohammad Ibrahim, Afzal son of Mohammad Ibrahim, Ibrahim son of Khwaja Buksh, Farooq son of Chhote Khan, Bhaya @ Sabbir and threb-four persons armed with Knives. Gupti and Lathis came on the spot with a common intention and attacked the deceased Mohammad Ibrahim inflicted knife injury on the back of deceased. Ibrahim inflicted knife injury on the right side near the shoulder and Afzal inflicted injury with Gupti on the right side of the rib, Farooq inflicted knife on the left side of the rib of the deceased. His brother fell down, despite that they continued beating and ran away. He, due to fear, did not interfere and watched the occurrence from distance. This occurrence was witnessed by Mohammad Saddique, son of Usuf Ali, Mohammad Jahoor son of Mohammad Bashir and Kalu son of Mohammad Saddique and many others. As his brother became unconscious, he took him to Bada Hospital by an Auto-Rickshaw. He was examined by the Doctor in the Hospital and declared brought as dead. The deceased has been beaten by the accused persons because of the old enmity with them and caused the injuries with common intention to murder the deceased. He has been declared dead and kept in the post mortem room." On the basis of this written report, First Information Report No. 39/92 came to be registered in Police Station Vigyan Nagar, Kota at 10.40 AM. In the FIR, the names of the accused have also been shown. He has been declared dead and kept in the post mortem room." On the basis of this written report, First Information Report No. 39/92 came to be registered in Police Station Vigyan Nagar, Kota at 10.40 AM. In the FIR, the names of the accused have also been shown. The investigation was started and during investigation, investigating Officer recorded the statements of eye witnesses, Mohammad Saddique, Mohammad Jahoor and Mohammad Hussain complainant. He prepared site plan which has been exhibited as Exhibit P-8. Blood stained soil along with a soil was collected from the spot of occurrence and was sent to Forensic Science Laboratory for chemical examination which has been exhibited as Exhibit P-9. The FIR has been exhibited as Exhibit P-14. The weapons of offence i.e. three knives and one Gupti have been recovered at the instance of the accused on the basis of their disclosure statements. They have been exhibited as Exhibits P-15, P-17, P-18 and P-19. The prosecution filed challan to prove the guilt relying upon the statements of eye witnesses and other connected evidence collected during investigation. The trial court framed the charge against the accused Farooq son of Chhote Khan, Ikram son of Mohammad Ibrahim, Mohammad Afzal son of Mohammad Ibrahim and Mohammad Ibrahim son of Khwaja Bux for commission of offence under Sections 147, 148 & 302/149 IPC and 4/25 of Arms Act, 1959 whereas accused Bhaya @ Mohammad Sabbir and Farooq were charge sheeted for commission of offence under Sections 147, 148, & 302/149 IPC. They pleaded not guilty and were put to trial. Prosecution led the evidence before the trial court. PW-1 Mohammad Jahoor an eye witness was declared hostile. The investigating Officer could not be examined. On appreciation of the evidence led by the prosecution, the trial court came to the conclusion that prosecution has made out a case beyond shadow of doubt and recorded conviction and sentence against accused appellants to suffer life imprisonment. The trial court acquitted the accused Farooq son of Chhote Khan and Bhaya @ Sabbir son of Rafiuddin of the charge under Sections 147, 148 & 302/149 IPC and 4/25 of Arms Act, 1959 whereas accused Afzal son of Mohammad Ibrahim has absconded and his trial is pending. 3. Appeal has been preferred by the accused appellants on the ground that the trial court has not appreciated the evidence legally. 3. Appeal has been preferred by the accused appellants on the ground that the trial court has not appreciated the evidence legally. The accused though as per prosecution story inflicted grievous injuries with knives and Gupti but the recovery made from them do not support the prosecution version as the weapons of offence were not found tainted with blood. PW-1 Mohammad Jahoor, an eye witness, has been declared hostile whereas another eye witness PW-6 Mohammad Saddique, whose name finds place in the FIR as an eye witness has not supported the prosecution story and has stated that he heard about the incident and is thus a hearsay witness. The accused Afzal has been named by the complainant in the FIR but has not been dealt with by the Investigating Officer. An eye witness Kalu mentioned in the written report of the complainant has not been cited in the challan. The prosecution story is suffering from probabilities and loopholes, therefore, the judgment of the trial court is not sustainable.Heard learned counsel for the parties and perused the record. 4. Learned counsel for the appellants had reiterated the submissions as projected in the memo of appeal. On appreciation of the evidence, we find that the complainant PW-4 Mohammad Hussain has stated in the written report that while his elder brother Saleem was coming to the shop, the accused Ikram, Ibrahim, Afzal and Farooq and Bhaya @ Sabbir came on spot and inflicted injuries with sharp edged weapons. The prosecution has dealt with the accused Afzal during investigation and has not given the reasons as to whether he was associated in the occurrence or no evidence has been found against him, to be arrayed as an accused. 5. Similarly, Kalu has been named as an eye witness in the written report by the complainant. On the basis of which, FIR was registered. He has stated that he along with Mohammad Saddique and Mohammad Jahoor has seen the occurrence. He being an eye witness has not been cited in the challan to prove the case and no reasons have been explained by the prosecution. The Investigating Officer has also not been examined. The reliance placed by the prosecution for proving the guilt of the accused is merely on the basis of eye witnesses and the recoveries. The eye witnesses to the occurrence are PW-1 Mohammad Jahoor, PW-4 Mohammad Hussain, PW-6 Mohammad Saddique and Kalu. The Investigating Officer has also not been examined. The reliance placed by the prosecution for proving the guilt of the accused is merely on the basis of eye witnesses and the recoveries. The eye witnesses to the occurrence are PW-1 Mohammad Jahoor, PW-4 Mohammad Hussain, PW-6 Mohammad Saddique and Kalu. On appreciation of the statements of the eye witnesses, we find that PW-1 Mohammad Jahoor has been declared hostile. PW-6 Mohammad Saddique has stated in his statement that he is not eye witness. He heard about the occurrence, he is a witness of hearsay. There remains only one eye witness i.e. complainant Mohammad Hussain PW-4 brother of the deceased. He has supported the prosecution story. In his statement, he has not stated that Mohd. Ibrahim present on spot and participated in the occurrence. Therefore, on these count the statement of complainant is slightly doubtful with regard to the persons participated for inflicting injuries to the deceased. He has not stated in the statement that Kalu, Mohammad Saddique are the eye witnesses. He has stated that after the occurrence his elder brother Mohd. Saddique came on the spot and told him that the injured should be taken to the hospital. There is no corroborating evidence which supports the version of PW-4 Mohammad Hussain complainant. 6. So far as incriminating evidence of weapons used for commission of offence is concerned, the complainant in the written report has stated that accused Ibrahim inflicted knife on back, accused Ikram inflicted knife near the right side of the shoulder, Farooq inflicted knife on the left side of rib and Afzal inflicted Gupti on the right side of the rib of the deceased. Recovery of these weapons have been made but weapons are not found blood stained. Blood stained clay and the weapons were sent to the Forensic Science Laboratory. The FSL has also reported that the weapons did not contain blood stains whereas Serologist on the examination opined that on the clothes i.e. Baniyan, Bushirt and Pant were found stained with blood which was extensive, redbrown, faint brown large, medium small, thick, thin and moderate so the blood group could be determined. In order to connect the offence of weapons with the accused, the weapons in ordinary course would have been blood stained, if the injuries are caused by the weapon recovered by the prosecution. In order to connect the offence of weapons with the accused, the weapons in ordinary course would have been blood stained, if the injuries are caused by the weapon recovered by the prosecution. The presence of the blood stains cannot be ruled out, therefore, this incriminating evidence do not connect the accused with the commission of offence vis-a-vis weapon used by the accused. 7. Another aspect of the case is that the motive for murdering the deceased was that the first wife of the deceased was daughter of the accused Ibrahim, she died. Accused Ibrahim offered his second daughter to be married to the deceased. The deceased did not agree and married somewhere else. This has come in the statement of complainant but not supported or corroborated by any other witness. Therefore, the motive asserted has also not been proved. In the light of above observations, we find that the finding recorded by the trial court for conviction and sentence could not be sustained. The prosecution story suffers from evidence s loopholes, lacunae and probabilities. The weapons of offence could not be connected with commission of offence. The complainant had not been supported by any other evidence. The complainant has stated that injury with Gupti was inflicted on the deceased by Afzal whereas the Gupti has been recovered at the instance of Ibrahim which also makes out that the Gupti was D not used by Afzal and it perhaps might have been used by another accused. The weapon recovered from Mohd. Ibrahim cannot be associated for inculpability to Afzal. The prosecution could not connect the Gupti also used for commission of offence by a particular accused. 8. For the aforesaid reasons, we find that the prosecution has miserably 5 failed to prove the charge against the accused who deserve to be acquitted. We accordingly allow the appeal and acquit the appellants of the charge under section 302 IPC. They are serving sentence in the jail and directed to be released forthwith.Appeal Allowed. *******