JUDGMENT Hon’ble Vinod Prasad, J.—Appellant Sahim has been convicted by Additional District & Sessions Judge/Fast Track Court No. 1, Azamgarh vide his impugned judgment and order dated 25.2.2006, for offences under Sections 302/34, IPC and 25 Arms Act and has been sentenced to imprisonment for life and to pay a fine of Rs. 1000/- (Rs. One thousand only) on the first count, one year rigorous imprisonment and Rs. 500/- fine on the second count, with further order that in default of payment of fine, the appellant shall undergo two years further simple imprisonment. Both the sentences were ordered to run concurrently by the trial Court which were rendered in two connected Session’s Trial Nos. 645 of 2001, State v. Sahim and others, under Section 302/34, I.P.C. and S.T. No. 646 of 2001, State v. Sahim, under Section 25 Arm’s Act, which convictions and sentences has been challenged by the appellant in the instant appeal. 2. Prosecution allegations against the appellant, as is contained in the written report, Ex. Ka-1, are that informant Rustam was a resident of Sonwara, Police Station Rani Ki Sarai, District Azamgarh. Appellant along with two other co-accused Banne and Ismail had picked up the motor-cycle of a co-villager Guddu, which was kept in the house of the appellant. After a month Guddu got his motor-cycle recovered. Appellant Sahim, Banne and Ismail suspected that Aftab (deceased), brother of informant Rustam, had disclosed the place where the said motor-cycle was kept. 3. On 9.9.2001 at 4 p.m., informant along with Aftab (deceased) had gone to Sonwara market to purchase bulbs and shaving where appellant Sahim, Banne and Ismail were already present. Informant went to purchase articles from Pappu’s shop and Aftab (deceased) entered in Jallaluddin (PW 4), barber’s kiosk for shaving. At 4.00 p.m. when Aftab was getting up after getting shaved, that the three accused appellants Sahim, Banne and Ismail, all resident of Rani Ki Sarai, appeared near Jallaluddin’s kiosk and appellant shot at Aftab in the chest causing him injuries. Sustaining gunshot injury, Aftab sprinted towards Baker’s house when Banne and Ismail also shot at him causing him injuries and hence he fell down en-route to Baker’s house. Eye-witnesses Jallaluddin, Ashok, Mobsir and many others chased the assailants but they fled away. Informant with the help of co-villagers transported the deceased, in a tempo to the District Hospital, Azamgarh where the doctor declared him dead. Eye-witnesses Jallaluddin, Ashok, Mobsir and many others chased the assailants but they fled away. Informant with the help of co-villagers transported the deceased, in a tempo to the District Hospital, Azamgarh where the doctor declared him dead. His corpse was kept in the mortuary. Informant Rustam, PW 3, thereafter went to the police station Rani Ki Sarai covering a distance of 7 kilometres west-north, got the FIR Ext. Ka 1 scribed and lodged it as crime number 275 of 2001, under Section 302, I.P.C. the same day at 6.40 p.m. 4. P.W. 10 Rajnath Pandey, Head Constable prepared the chik FIR (Ex. Ka-7) and corresponding GD entry (Ext. Ka-8) vide Rapat No. 39, and entrusted the inestigation to S.I. Kashi Nath Singh, P.W.9. 5. Commencing investigation, PW 9, proceeded for the spot in village Sonwara where he recorded 161, Cr.P.C. statement of the informant. On the following day (10.9.2001) he recorded 161, Cr.P.C. statement of Jallaluddin P.W. 4, prepared seizure memos Ext. Ka 5 and Ext. Ka 6 of empty cartridges, plain and blood stained earth and recovered them. Thereafter he recorded the statements of witnesses of recoveries. Subsequent thereto Investigating Officer conducted the spot inspection and prepared the site plan, Ex. Ka-4. 6. S.O., R.K. Singh S.I., PW 8, thereafter took up the investigation, on 10.9.2001. All the three accused persons surrendered in the Court of Chief Judicial Magistrate, Azamgarh on 17.9.2001 and the same day their statements were recorded by him inside District Jail. This I.O. thereafter got the police custody remand of the accused persons on 24.9.2001 and the appellant Sahim and Ismail, deceased accused, got recovered two country made pistols from near fishery godown situated on Azamgarh, Varanasi road. Thereafter this witness, on 27.9.2001, recorded 161, Cr.P.C. statements of Bashir @ Pappu, Ayub, Masood, Shahid, Azizullah Haq, Irshad, Imran and Rustam and then, concluding the investigation submitted charge-sheet against the accused on 30.9.2001 as Ext. Ka-3. 7. Investigation of offences, under Section 25 Arm’s Act was also concluded by S.I. Gayasuddin, I.O., who also laid a charge sheet in that offence against the accused persons. 8. Inquest on the dead body of the deceased was performed by S.I., A .P. Maurya on 10.9.2001, in district hospital mortuary and an inquest report was prepared. Ka-3. 7. Investigation of offences, under Section 25 Arm’s Act was also concluded by S.I. Gayasuddin, I.O., who also laid a charge sheet in that offence against the accused persons. 8. Inquest on the dead body of the deceased was performed by S.I., A .P. Maurya on 10.9.2001, in district hospital mortuary and an inquest report was prepared. He had also prepared the other connected relevant papers which have been proved by Constable Sadanand Singh, PW 11, as Ext Ka 9 to Ka 13. 9. Autopsy on the dead body of the deceased was performed by Dr. Ram Prakash, PW 7, on 10.9.2001 at 4 p.m. and he had found following external ante mortem injuries on the dead body of the deceased : Ante mortem Injuries (1) Firearm wound of entry 3 O’clock x 2.0 c.m. into chest cavity deep on the left side anterior aspect of chest, 11.0 c.m. below the left nipple at 5.0 O’clock position. Margin inverted. Blackening & tattooing present in area of 16.0 x 14.0 c.m. (2) Firearm wound of exit 3.0 cm. x 2.5 cm. on the lateral aspect of Right chest x through and through. Margins inverted. Injury is 16.0 cm. below to the axilla in mid line. (3) Firearm wound of entry 2 x 1/2 x 2.0 x Chest cavity deep on the left side back of chest, 8.0 c.m. below the interior angle of left scapula and 2.0 cm. left lateral to mid vertebral line margin inverted. Blackening & tattooing present in area of 6.00 x 6.0 cm. (4) Firearm wound of exit 3.0 cm. x 2 & 1/2 cm. x chest cavity deep on the anterior aspect of right chest, 12.0 cm. below the right nipple at 7.0 O’clock position. Injury communicating to injury No. 3. Margin inverted. (5) Injury No.5- Abrasion 3.0 X2.0 cm. lateral aspect of right side abdomen 3.0 cm. above right iliac crest. 10. On further examination, post mortem staining were present on the dependent parts of the body, rigor mortis were present on both the extremities, stomach was empty and small and large intestines contained gases, pasty materials and faecal matter, and Gall bladder was lacerated. 6th rib on the left side and 6th and 8th ribs on the right side were fractured and pleura, right side chest were lacerated. 300 ml blood was present in the chest cavity. 11. 6th rib on the left side and 6th and 8th ribs on the right side were fractured and pleura, right side chest were lacerated. 300 ml blood was present in the chest cavity. 11. Chief Judicial Magistrate, Azamgarh committed both the cases to the Court of Sessions. Case under Section 25 Arms Act against the appellant was registered as Sessions Trial No. 646 of 2001, State v. Sahim. It is noted here that both the Session’s Trial Nos. 465 of 2001 (Crime No. 275 of 2001) under Section 302, IPC and S.T. No. 646 of 2001, State v. Sahim, under Section 25 Arms Act were clubbed together by the trial Judge and have been judgmented by the impugned common judgment and order, under challenge. 12. On 8.1.2001, the trial Judge framed charges against all the three accused persons under Sections 302/34, IPC and 25 Arms Act, which charges were read out and explain to them. The accused persons denied both the charges and claim to be tried. 13. Accused Ismail died during the pendency of the trial and therefore, his case was abated. Another accused Banne absconded and therefore, his case was separated by the trial Judge. Only the present appellant faced the trial and was convicted and sentenced as mentioned above, which convictions and sentences are under challenge before us. 14. The prosecution, in order to bring home the guilt of the appellant, examined in all eleven witnesses out of whom Mustaq Ahamad P.W. 1, Badri P.W. 2, Rustam P.W. 3, Jalaluddin (eye-witness) P.W.4, Masood (eye-witness) P.W. 5, Mohd. Bashir (eyewitness) P.W. 6 are the witnesses of facts. Dr. Ram Prakash P.W. 7, S.I. Rajendra Kumar Singh P.W. 8, S.I., Kashi Nath Pandey P.W.9, Head Const. Raj Nath Pandey P.W.10, and Constable Sada Nand Singh P.W.11, are formal witnesses. 15. In the connected Session’s trial, under 25 Arms Act, the investigating officer S.I.Gayasuddin has been examined as PW 1. 16. In his deposition in the trial Mustaq Ahmad P.W.1 stated that Investigating officer had recovered two empty bullet cartridges, one cartridge of 3.8 bore, one live cartridge, one bullet of 3.3 bore from the place of the incident and had seized and sealed them in the newspaper after preparing a recovery memo, which was signed by him. 16. In his deposition in the trial Mustaq Ahmad P.W.1 stated that Investigating officer had recovered two empty bullet cartridges, one cartridge of 3.8 bore, one live cartridge, one bullet of 3.3 bore from the place of the incident and had seized and sealed them in the newspaper after preparing a recovery memo, which was signed by him. On the same day blood stained, plain earth, blood stained wood piece were also collected from inside the barber’s shop and from the place where deceased had fallen down and had prepared recovery memo in that respect, which was also signed by him. He had further stated that Investigating Officer had also recorded his 161, Cr.P.C. statement. (It is important to note at this point that signatures of this witness were not got exhibited by the prosecution). However, on being cross-examined this witness P.W. 1, resiled from his earlier statements and deposed that he had met the Investigating Officer on the following day at 3-3.30 p.m. Besides police personnels many villagers were also present at that time. He further deposed that Investigating Officer got his signatures on blank papers, without there being any other signature, on the assurances that he had not go to anywhere and he had denied recoveries and preparation of recovery memos in his presence and thus had given contradictory statements. 17. Badri P.W.2, a hostile witness, in his deposition stated that he was going to graze his cattle when he met the I.O. Neither recovery of empty cartridges, bloods etc. were made in his presence nor he was interrogated by the Investigating Officer. In his cross-examination he had accepted his signatures on the recovery memos but had pleaded ignorance regarding it’s contents. He had denied giving of 161, Cr.P.C. statement to the Investigation officer and had denied the suggestion that he had sided with the accused and is not deposing truthfully because of their fear. 18. Informant Rustam, PW 3, in his deposition before the Court, besides narrating his FIR version, had further deposed, in his examination -in- chief, that first shot had hit his brother on the chest and after sustaining injuries he came out of the kiosk and had ran towards Baker’s house. 18. Informant Rustam, PW 3, in his deposition before the Court, besides narrating his FIR version, had further deposed, in his examination -in- chief, that first shot had hit his brother on the chest and after sustaining injuries he came out of the kiosk and had ran towards Baker’s house. He further deposed that he had transported injured in a tempo, to the district hospital for treatment, where the doctor had declared him dead and after depositing his corpse in the mortuary, that he had come to the police station and lodged the FIR, Ext. Ka 1, after getting it scribed. He had proved Ext. Ka 1, the written report. He had also deposed that inquest was prepared at the spot by the I.O. and he had signed on it besides stating that he can sign only in Urdu script. 19. During his cross-examination he deposed that incident occurred one and half months later from his return from Bombay eight months prior, where he has a plumber shop. He pleaded ignorance regarding criminal history of the deceased and how many times he had gone to prison, even though specific questions were put to him in this respect. He had testified that Sonwara Bazar, which was more than half but less than a kilometer had 5-6 shops which were open at the time of the incident and he had gone there only to purchase bulbs, which he had kept with him. From this point onwards he had contradicted his own FIR version by deposing that, when he had reached the police station along with the dead body at 4.30.p.m., he had met the I.O. who had directed him to give a written report, on which he got the report transcribed and lodged it at that time itself. Meanwhile, the body was not brought down from the tempo nor it was kept on the ground, but it was alighted from the tempo and was reloaded in a jeep at 4.30 p.m. itself. At that time they had waited at the police station for five minutes and then had started in the jeep along with the dead body to get it deposited in district hospital mortuary. At that time they had waited at the police station for five minutes and then had started in the jeep along with the dead body to get it deposited in district hospital mortuary. PW 3, informant, further stated that he had carried the body with him in the tempo as well as in the jeep and since the body was wet with blood, front portion of his body also was soaked with deceased blood. After depositing the body that he had returned to the police station and, this time, he waited there for half an hour before he was dropped to his house by the I.O. in his jeep at 9.p.m. He had mention the distance of his house to be four Kms., which was covered by the jeep in ten minutes. I.O had not prepared any written document regarding blood stains on his person and clothes as the I.O. did not know about it. Regarding the bulbs, I.O. had questioned him at 4.30. p.m. itself, but he had informed the I.O. then, that he had dropped/lost it. He had met with the I.O. following day at 9 a.m. at barber’s shop from where blood was collected after scrubbing wood planks. 20. Informant’s further deposition in the cross-examination is that only two fires were made in the incident, of which he had heard the sounds. Aftab (deceased) had sustained one injury on his chest, inside the kiosk when he was about to come out of kiosk and thereafter he had ran to save his life. He had informed the I.O. that only two fires were made during the incident. 21. Rustam, informant had further testified that he had dictated the report to a person sitting on a bench behind a table, near the I.O., inside the police station, after getting the paper from the office of the police station itself. He had, however, denied the suggestions that he was not an eye-witness of the incident, nor he had transported the corpse to the police station and to the hospital, nor he had gone with the deceased to the market nor had purchased any bulb, and subsequent to the murder that he had reached and in consultation and connivance with the I.O., a false FIR was cooked up and the same was lodged anti dated and anti timed. 22. 22. Jalaluddin, P.W. 4, an alleged eye-witness of the incident and owner of the barber’s kiosk where the deceased had gone for shaving however, did not support the prosecution case, as was spelt out by the informant in his FIR and statement. He had further deposed that he was a barber by caste and he had a Kiosk in Sonwara Bazar, which was closed at the time when he was testifying in Court. Aftab was murdered seven or eight months before his deposition in Court near his kiosk. He had further deposed that he did not know, how the deceased was murdered at 4 p.m. near his Kiosk in front of Baker’s house. However, he had testified that deceased had come to his Kiosk and after getting shaved, he started combing his hair. Meanwhile he left his shop to attain call of nature at a distance of ten bighas. Forty five minutes thereafter he had heard the gun fire sound. When, he returned back to his shop, he found a collection of crowd at a distance of 100 and 150 paces from his shop where the deceased was lying murdered on the ground near Baker’s house. Because of gathered crowed he could not see the corpse and ran away from a distance of 50 paces from it. 23. Masood (eye-witness) P.W. 5, deposed that Aftab was murdered in village Sonwara at the shop of P.W. 4 Jalaluddin but he had not seen the place where deceased corpse had fallen down. He had further deposed that he had heard that the three named accused were the murderers. He had denied signing on any paper. 24. Mohd. Bashir @ Pappu P.W. 6, in his deposition before the Court stated that he had got a bulb shop in Sonwara Bazar adjacent to Jalaluddin’s shop. He had gain the knowledge that the deceased was murdered in Jalalluddin’s shop when he was getting himself shaved but he did not know who were the murderers. He further denied giving 161, Cr.P.C. statement to the I.O. His further deposition is that he had come to know about the incident after his return from his in-laws house the following day of the incident. 25. Dr. Ram Prakash RDMO district Azamgarh, P.W. 7, deposed regarding autopsy performed by him as is mentioned above. He further denied giving 161, Cr.P.C. statement to the I.O. His further deposition is that he had come to know about the incident after his return from his in-laws house the following day of the incident. 25. Dr. Ram Prakash RDMO district Azamgarh, P.W. 7, deposed regarding autopsy performed by him as is mentioned above. He had also deposed that the dead body was brought to him by Constable Ram Kinker Singh and Constable Ved Prakash of police station Kotwali. The deceased was 25 years of age and one day had passed since his death. He had further stated facts already recorded herein above. During his cross-examination, doctor had opined that he had found two firearm wounds of entries and no pellet was detected inside dead body. There was one more injury on the dead body which was caused by hard and blunt object. He had further deposed that there was blood present in the chest cavity and only a Bushirt and pant was on the body. Rest of his cross-examination is irrelevant. 26. S.I. Rajendra Kumar. P.W. 8, who is the second Investigating Officer, evidenced herein above mentioned steps taken by him besides the deposition that he had not recorded the statement of any eye-witness. He admitted that during custody remand no accused made statement regarding concealing of weapons. He had denied the suggestion that he had shown a false recovery but admitted that he cannot disclose the boundaries of the place from where the recoveries were made. He also showed his ignorance regarding sending the recovered firearms to the ballistic expert for tallying it with the recovered empty and live cartridges. 27. S.I. Kashi Nath Singh, P.W. 9, the first I.O., in his deposition before the Court, had deposed regarding various steps taken by him while conducting investigation described herein before in the earlier part of this judgment. He had further deposed that the deceased was shot at while he was getting himself shaved. He had further deposed that he remained at the place of the incident throughout the night although the dead body was not there and only next day morning that he had started conducting the investigation. However, he denied the suggestion that investigation was postponed during night as the FIR was not in-existence nor the accused were unknown. He had further deposed that he remained at the place of the incident throughout the night although the dead body was not there and only next day morning that he had started conducting the investigation. However, he denied the suggestion that investigation was postponed during night as the FIR was not in-existence nor the accused were unknown. He had further evidenced that the house of the accused was at a short distance from where he had stayed in night but had not prepared memo regarding search of their houses nor the said fact is mentioned in the case diary. He had further testified and contradicted the informant by deposing that he did not inquire from him regarding purchase of bulbs nor had inquired from him regarding blood stains on his cloths, while admitting that in above circumstances preparation of seizure memo and recovery of blood stained clothes is a part of investigation and should have been mentioned in G.D. He had denied that he had not conducted fair investigation. He had also denied that he had prepared a false report. 28. On being recalled, the said witness had deposed that on 24.9.2009, the accused persons had made discloser statements of getting weapons of assault recovered. He had brought those accused persons to the sericulture godown and from nearby the two accused, present appellant and Ismail, got 3.3. bore country made pistols recovered at 3.15 p.m. on the same day. The firearm wielded by the accused Banne, however, could not be recovered. He had mentioned the description of recovered pistols, which were seized, sealed in separate papers. A recovery memo was scribed by him at the dictation of S.O. Rajendra Kumar Singh, PW 8, a copy of which were handed over to the accused who were booked under 25 Arms Act as well. Since no public witness came forward as witness, hence only police party had signed on the recovery memo, Ext. Ka-1, which he had scribed in the Jeep standing on the road. He had also proved the recovered weapon from the appellant as material Ext. 1, which was recovered from beneath the bushes more than head high near a public way. 29. Rajnath Pandey, Head Constable, PW 10, in his deposition stated that he had prepared chik FIR and corresponding GD on the basis of Ext. Ka 1, which he had proved as Ext.Ka-7 and Ext. Ka-8. 1, which was recovered from beneath the bushes more than head high near a public way. 29. Rajnath Pandey, Head Constable, PW 10, in his deposition stated that he had prepared chik FIR and corresponding GD on the basis of Ext. Ka 1, which he had proved as Ext.Ka-7 and Ext. Ka-8. He had further deposed that on 24.9.2001, on the basis of recovery memo Ext. Ka-11, he had registered the FIR of Crime No. 281 of 2001, under Section 25 Arms Act, against the appellant and had prepared corresponding GD, which two documents he had proved as Ext. Ka-9 and Ka-10. 30. Constable Sada Nand Singh P.W.11, in his deposition had stated that along with S.I. A.P. Maurya he was posted at police station Rani Ki Sarai in the year 2001. He had seen him writing. He had proved the inquest report and other documents, already mentioned above, as Ext. Ka-9 to Ka-13 to be in the handwriting of the said S.I. A.P. Maurya. 31. The accused appellant in his statement, under Section 313, Cr.P.C., denied the incriminating circumstances appearing against him in the prosecution evidence and took the defence of false implication and manufactured FIR against him. In his defence, the appellant accused, had examined three defence witnesses, namely, Sakib Ali D.W. 1, Mohd. Sufiyan D.W. 2 and Sada Nand D.W. 3. 32. Sakib Ali, DW 1, in his deposition before the Court stated that Sufiyan, father of appellant Sahim, had a cement and hardware shop in Rani Ki Sarai market. The appellant use to realize shop’s sale proceeds. Rustam is a resident of his village and when his house was being constructed then iron bars and the cements were purchased from the shop of Mohd. Sufiyan and Rs. 30,000/- of the sale proceeds were due on Rustam, informant. Appellant used to visit Rustam for realization of the remaining balance amount on which Rustam had threatened to implicated the appellant in a false case. He had further deposed that the deceased was a history sheeter and being tired of repay demand that the appellant had been falsely implicated by the informant. He had admitted that he had not disclosed these facts earlier to any body, he had given evidence for the first time in the Court without any summons etc. and appellant had called him for giving evidence. He had admitted that he had not disclosed these facts earlier to any body, he had given evidence for the first time in the Court without any summons etc. and appellant had called him for giving evidence. He had further stated that he was an eye-witness of the supplies of 30/40 bags of cement to Rustam. He had not seen the ledger or register of Sufiyan’s shop and admitted that he belongs to the family tree of the appellant but denied that he was deposing falsely because of the aforesaid reason to save the appellant. 33. Mohd. Sufiyan, DW 2, father of the appellant, had also made a similar statement as that of D.W. 1 in his examination-in-chief and had further deposed that but for Rustam, as mentioned above, no sale proceed was due to any other person and he had not made any complaint to authorities regarding false implication of the appellant. 34. Sada Nand, DW 3, had proved the criminal history report of the deceased as Ext. Kha-1, which was prepared by the Raj Nath Singh. He had pleaded no personal knowledge as to whether deceased Aftab was a history sheeter or not. 35. In Sessions Trial No. 646 of 2008, under Section 25 Arms Act, charge was framed on 8.1.2002 on the appellant. S.I. Gayasuddin was examined as P.W. 1, who was I.O. of the relevant crime No. 281 of 2008. 36. Gayasuddin P.W. 1, testified that he had commenced the investigation on 25.9.2001 and had copied chik FIR, GD etc., recorded statements of Rajendra Kumar Singh, informant, S.I. Kashi Nath Singh constable, Chandra Deo constable, Gyanendra Ram. On 27.9.2001,he conducted spot inspection, and prepared site plan Ext. Ka 1. Next day he recorded statements of accused persons, and then submitted charge-sheets Ext. Ka-2 and Ext. Ka-3 against appellant Sahim and deceased accused Ismail respectively. 37. He has further deposed that he had not examined any independent witness nor there was such a witness of recovery. In recall examinations, he had proved sanction order Ext. Ka-4 granted by the District Magistrate, R.N. Tripathi. 38. Ka-2 and Ext. Ka-3 against appellant Sahim and deceased accused Ismail respectively. 37. He has further deposed that he had not examined any independent witness nor there was such a witness of recovery. In recall examinations, he had proved sanction order Ext. Ka-4 granted by the District Magistrate, R.N. Tripathi. 38. The trial Judge after looking to the oral and documentary evidences led by the prosecution and the defence in both the trials came to the conclusion that the prosecution had successfully brought the guilt of the appellant home and therefore, convicted him in both the offences under Section 302/34, I.P.C. and 25 Arms Act and sentenced him to life imprisonment with a fine of Rs. 1000/- for the charge of murder and one year rigorous imprisonment and a fine of Rs. 500/- under 25 Arms Act and in default of payment of fine to undergo two years further simple imprisonment vide his impugned judgment and order dated 25.2.2006. Hence this appeal. 39. We have heard Sri B.B. Paul, learned senior advocate assisted by Sri A.P. Paul on behalf of appellant and Mrs. Raj Laxmi Sinha, learned AGA, on behalf of the State. We have, also gone through the entire record of this Criminal Appeal. 40. It is contended by learned Sr. counsel for the appellant that the prosecution has failed to establish the charge and guilt of the appellant on the evidences led by it. The informant had not dictated or scribed the first information report, which is the out come of concoction and manipulation at the police station itself in connivance with the informant and the I.O. It was further contended that the post-mortem examination report does not support the ocular testimony and in fact it contradicts it. Neither the first informant was present at the time of the incident nor his testimony inspires confidence nor it is a reliable testimony. Other eye-witnesses of the fact, did not support the prosecution case and have completely exonerated the appellant. Investigation of the crime is tainted, full of annomalies and does not establish the case against the appellant at all. It was further submitted that the recovery witnesses have disowned factum of recovery being made in their presence and hence recovery and seizure memos are sham documents. Investigation of the crime is tainted, full of annomalies and does not establish the case against the appellant at all. It was further submitted that the recovery witnesses have disowned factum of recovery being made in their presence and hence recovery and seizure memos are sham documents. FIR, the first version of the informant, being outcome of manipulation destroyed credibility of witnesses and resultantly, the whole of the prosecution story falls flat on the ground. Further it was contended that the informant’s testimony is full of contradictions on the material aspects of the matter and he has been contradicted by other witnesses on every single aspect of the prosecution story and, therefore, the prosecution has failed to establish its case against the appellant. It is, next argued, that looking to the post-mortem examination report, it seems, that the crime was committed by a single accused and the appellant has been falsely implicated for the reasons mentioned by him in his statement under Section 313, Cr.P.C. Had the prosecution version being correct, the recovery of empty and live cartridges from the spot would have been an impossibility. It was further submitted that there was no motive for the appellant to commit the murder and the prosecution has miserably failed to establish motive of theft of motor-cycle and keeping of the same in the house of the appellant. It was further argued that Guddu, who was the best witness of the alleged motive, had been withheld by the prosecution intentionally and deliberately and, therefore, adverse inference of absence of motive should be drawn against the prosecution. It is contended that though the motive relegates into the background when there are eye-witnesses account but when the motive alleged by the prosecution is false, it certainly dents the credibility of the prosecution’s story and of it’s witnesses. Under such grave error, the prosecution had failed to establish the charge against the appellant to the hilt. Drawing curtain of his argument, learned Senior counsel pleaded that conviction of the appellant, on both the counts, through the impugned judgment and order, cannot be sustained and the appellant deserves acquittal by allowing his appeal. 41. Learned AGA refuting the arguments of learned Senior Counsel contended that it is a day light incident and there are eye-witnesses account. Drawing curtain of his argument, learned Senior counsel pleaded that conviction of the appellant, on both the counts, through the impugned judgment and order, cannot be sustained and the appellant deserves acquittal by allowing his appeal. 41. Learned AGA refuting the arguments of learned Senior Counsel contended that it is a day light incident and there are eye-witnesses account. The prosecution version has been well supported by the medical evidence and the testimony of P.W. 3, who is real brother of the deceased, cannot be brushed aside who had no motive to depose falsely against the appellant. Other witnesses of facts, though have endeavoured to exonerate the present appellant had on all material aspects of the matter have supported the prosecution version in respect of time, place and manner of incident mentioned in the FIR. Concludingly, it was submitted that the prosecution has successfully brought home the guilt of the appellant. The appeal is bereft of merits and deserves to be dismissed and appellant’s convictions and sentences deserves to be sustained. 42.Cogitating over the facts we find that, according to the prosecution case, genesis of the incident started when the informant had gone to the market to purchase bulbs accompanied by the deceased, who had gone there for the purposes of getting himself shaved. Accused persons were already present since before in the market. Informant’s deposition indicates that he had purchased five bulbs from the shop of PW 6, Mohd Bashir @ Pappu, while the deceased entered in the next barber kiosk of PW 4 Jalalludddin for shaving. However PW 6, in his deposition, contradicted the version of the informant, by deposing that his shop was closed on the day and at the time of the incident. On this aspect, the prosecution has not declared him hostile nor it even endeavoured to get it’s allegations elicited from him. Defence, however, further got it elicited from him that he had returned from his in-laws house following day of the incident. Further, informant could not retain the bulbs with him and got it lost/dropped somewhere. It is the case of the informant that he had gone to the market to purchase bulbs only and he had no other work. Thus the only evidence which could have probablised the presence of the informant at the time of the incident is absent. Further, informant could not retain the bulbs with him and got it lost/dropped somewhere. It is the case of the informant that he had gone to the market to purchase bulbs only and he had no other work. Thus the only evidence which could have probablised the presence of the informant at the time of the incident is absent. Further on this aspect of the matter the evidence of informant and that of the I.O. contradicts each other. Informant deposed that he had informed the I.O. for loosing of bulb but the I.O. denied to have examined him on this aspect of the matter. Although an explanation has been offered for such a lapse by learned AGA, making submissions that after the incident of murder, loosing of bulbs is not a very material circumstance, but the fact remains is that purchase of bulbs by the informant itself remains disproved by closer of the shop from where he had alleged to have purchased the bulbs. Non disclosure to the I.O. regarding absence of factum of loosing of said bulbs further erodes the truthfulness of this allegation by the informant and, therefore, these facts dent the prosecution’s story to a great extent making the presence of the first informant, at the scene of the incident, suspect and doubtful. Defence suggestion, on such evidence, that informant was not present at the time when the incident occurred and subsequently he was summoned and a false case was cooked up, therefore, cannot be taken to be improbable and in fact we find it more probable than the prosecution evidence. Further on this aspect rest of the witnesses of facts P.W. 4 to P.W. 6 have not stated anything. Their conspicuous silence on this aspect of the matter makes informant’s allegation untruthful and resultantly his presence on the spot doubtful. 43. Moreover presence of first informant at the time of the incident is also improbablised from his description of the incident. According to the site plan, “A” is the place inside kiosk where the deceased was getting himself shaved facing towards east. He was shot at from place “F” which was towards his back. 43. Moreover presence of first informant at the time of the incident is also improbablised from his description of the incident. According to the site plan, “A” is the place inside kiosk where the deceased was getting himself shaved facing towards east. He was shot at from place “F” which was towards his back. Shot from place “F” will not hit the deceased in the chest, as was deposed by the informant, and ostensibly, for this reason he changed his stand by stating that while his brother was trying to come out from the kiosk, he was shot at in his chest. This statement of the informant is contradicted by site plan, prepared by the I.O. PW 9, at his instance. In fact place “A” where the deceased was sitting/standing will not be visible from place “9”, from where the informant saw the incident and where he was alleged to have been present. Further, sprinting of the deceased to 60 paces (Place “C” in the site plan), without trickling of blood on the earth, makes the story of running away by him after sustaining four gun shot injuries,(two entry and two exit wounds), as stated by the informant, doubtful and indicates that, probably, he was not present at the scene of the incident. This opinion we have formed, also because, at the time of the incident deceased was wearing only a shirt and a pant (See autopsy report) and looking to the extensive damage caused by four wounds, soaking of blood inside the clothes is a remote possibility. Blood did oozed out from his injuries as the same was alleged to have been collected by the I.O. Absence of blood to a distance of sixty paces, therefore, damages informants version irreparably and makes his presence at the scene of the incident doubtful. Yet another aspect is that , according to the informant, three assailants had shot at the deceased. First fire was made by the present appellant and rest of the two fires were made by other murderers, while the deceased was escaping for his life. However, deceased sustained only two gun shot injuries from a very close range with their respective exit wounds. Both entry wounds had blackening and charring present in them. First fire was made by the present appellant and rest of the two fires were made by other murderers, while the deceased was escaping for his life. However, deceased sustained only two gun shot injuries from a very close range with their respective exit wounds. Both entry wounds had blackening and charring present in them. All the three assailants had shot at him from place “F” in the site plan and therefore the autopsy report contradicts informant’s version of firing made by three accused. Because of aforesaid contradiction, in the later part of his deposition, informant, PW 3, had to admit that only two fires were made during the occurrence and he had heard only two gun fire shots. This ostensibly was done by him to make his story consistent with that of the medical evidence and autopsy report. Thus manner of actual incident, as stated by the informant, gets contradicted by medical evidence, indicating informant’s absence at the time of the incident and his deposition in Court suspect. 44. No blood was found on the clothes of this witness, albeit, he had deposed that his clothes and body were stained with blood in the process of lifting and carrying the deceased to the hospital. It will be very surreal for us to accept informant’s statement that though he had reached police station in day light and had alighted and reloaded the corpse from tempo to jeep, yet the I.O. could not see blood on his clothes. In this respect Ist Investigation Officer’s deposition that he did not inquire about the blood stained clothes, while admitting that such a step is a part of investigation, makes the presence of informant suspicious and lend credence to the defence suggestion that he had not transported the corpse to the police station nor his clothes were soaked with blood. For recording a conviction, intrinsic merit of the witness’s deposition should be beyond reasonable doubt, which is missing in case of the informant. 45. From the above discussion, we conclude that prosecution has failed to establish the presence of the first informant at the time and place of the incident beyond doubt. 46. For recording a conviction, intrinsic merit of the witness’s deposition should be beyond reasonable doubt, which is missing in case of the informant. 45. From the above discussion, we conclude that prosecution has failed to establish the presence of the first informant at the time and place of the incident beyond doubt. 46. Coming to the motive part of the argument, although we are oblivious of the fact that motive relegates into the back ground in a case of direct ocular testimony and is not of much significance, but where the motive is false and cooked up, then it assumes importance to test the veracity or otherwise of the prosecution witnesses. From the evidence, we find that the motive of motor-cycle theft is also a dicey piece of evidence. Firstly, identity of Guddu, whose motor-cycle was alleged to have been stolen, has not been disclosed by the prosecution. Nowhere it has come as to who this person was. Secondly, there is no documentary evidence on record to substantiate that motive. Guddu himself did not made any complaint about it nor there is any evidence to that effect. Thirdly, Guddu was not interrogated by the I.O. regarding alleged motive nor he was made a witness of the charge-sheet. Fourthly, neither, make nor any description of the said motor-cycle has been disclosed by the informant and lastly, but for the ipse dixit, of a single witness, informant PW 3, no other witness of fact had come forward to support this allegation. In absence of convincing material before us, we find it difficult to accept this allegation that there was any motor cycle theft, which was got recovered from the house of the appellant. 47. Considering next argument that FIR, Annexure 1 and Chik FIR, Annexure 7 are manufactured and cooked up documents, we find that there was no scribe of the FIR mentioned in the written report, Annexure 1, indicating that it was the informant himself who had scribed it on his own. However when examined during trial, informant PW 3, had to admit that he had not scribed Annexure 1, but had dictated it to a person sitting behind a table inside the police station, near the I.O., after getting a paper from the office of the police station itself. However when examined during trial, informant PW 3, had to admit that he had not scribed Annexure 1, but had dictated it to a person sitting behind a table inside the police station, near the I.O., after getting a paper from the office of the police station itself. In the normal course of conduct, we can safely conclude that this person can be none other than the Head Moharrir of the police station. It seems that it is because of this reason that the name of the scribe is not mentioned in Ext. Ka-1, the written report. It was also deposed by P.W. 3 that I.O. was present at that time of dictation of the FIR and it was he ( I.O.), who had directed the informant to lodge a written report. The most significant knock out blow to the prosecution case has been given by deposition of informant P.W. 3 that he had transported the corpse in a tempo to the police station where he had met with the I.O. at 4.30 p.m. I.O. asked him to give a written report on which he lodged a written report. While he was dictating the report corpse was not brought down from tempo and kept on the ground. Thereafter it was alighted from tempo and reloaded in another jeep at 4.30 p.m. They waited at the police station for five minutes and then proceeded along with the corpse and got it kept in the mortuary in district hospital. Informant had carried the dead body into the tempo and it was he who had alighted and reloaded it in the jeep and in that process his clothes were soaked with blood. After depositing the body he again returned to police station and waited there till half an hour and thereafter he was dropped by the I.O. at his house. The above is not the case in FIR and examination-in-chief which indicates that FIR is made ante time and is cooked up. The deceased had already died in the incident and it was his dead body which was transported in a tempo to the police station first and then to the hospital to be deposited in the mortuary. The above is not the case in FIR and examination-in-chief which indicates that FIR is made ante time and is cooked up. The deceased had already died in the incident and it was his dead body which was transported in a tempo to the police station first and then to the hospital to be deposited in the mortuary. FIR version is otherwise where it was mentioned that deceased was alive when transported to the hospital and it was in the hospital that the doctor had declared him dead and after depositing the body in the mortuary that the informant came to the police station to lodge the FIR. Such depositions by the informant creates a reasonable doubt that the FIR was cooked up at the police station in the presence of the I.O. and therefore it looses it’s significance and corroborative value. Lodging of FIR at the first instance at 4.30 p.m. when chik FIR shows time as 6.40 p.m. makes it a sham document, especially when the deceased was already dead. It is recalled here that the appellants had suggested that a false FIR was cooked up at the police station by the informant in connivance with the I.O. 48. Further we find that inquest on the dead body was conducted by S.I. A.P. Maurya. Prosecution has not examined him in the trial. His handwriting has been proved by the PW 11, CP No. 701, Sadanand Singh. According to his deposition the said S.I. had prepared the inquest report, challan lash, Letters to R.I. and to the C.M.O., photo lash, etc., which papers had been proved by him as Ext. Ka 9 to Ka 13. Since accused had not disputed the genuineness of these exhibits, their contents can be taken into consideration to examine the whole prosecution case for its truthfulness. If the FIR was in existence at 6:40 p.m., why the police of P.S. Rani Ki Sarai did not conduct the inquest on the dead body within a reasonable period of time and allowed it to be conducted next day by S.I., A.P. Maurya. It is also significant to note that the informant was the first witness of the inquest, which had commenced at 11:30 a.m. next day of the incident. It is also significant to note that the informant was the first witness of the inquest, which had commenced at 11:30 a.m. next day of the incident. Columns in police Form No. 13 are left blank, and the time of lodging of FIR in it is mentioned as 19:30 (7:30 p.m.) which is not the time mentioned in the chik FIR. It is recorded here that, at the time of inquest, informant had informed the S.I. that he had lodged the FIR under 302, I.P.C. at the police station Rani Ki Sarai and therefore there was no reason for mentioning a wrong time in the said document and this fact shows that, in fact, FIR was later on cooked up, after the inquest was over and it was made ante timed. We find support in our view from the deposition of P.W. 3 himself where he had stated that he had reached the police station along with the dead body at 4.30 p.m. and at that time, on the instructions of the I.O., had lodged the FIR but the prosecution came out with a contradictory case of registering the FIR at 6.40 p.m. Thus FIR and its contents are suspect , doubtful, which crumbles prosecution case in its entirety. 49. Another worrying aspect of the FIR is that informant was familiar and he could sign only in Urdu script and therefore, Ext. Ka 1, could not have been prepared by him in his own handwriting in Hindi script. This fact makes the genuineness of the FIR suspect. Last portion of Ext. Ka 1, in conjunction with the evidence of PW 3, probablises defence suggestion that FIR is a sham document. 50. We also find that P.W. 4, 5 and 6 were not declared hostile by the prosecution. Their depositions do not at all support the allegations against the appellant. Their evidences regarding the time and manner of assault are hearsay, which is not admissible at all. Their evidences cannot be utilized for any purpose at all regarding the incident. An inadmissible evidence cannot be admitted for any purpose at all, not even for corroboration. An inadmissible evidence is an inadmissible and we say no more. Genesis of the incident started in the shop of Jalalluddin P.W. 4 which has not been spelt out by him at all. An inadmissible evidence cannot be admitted for any purpose at all, not even for corroboration. An inadmissible evidence is an inadmissible and we say no more. Genesis of the incident started in the shop of Jalalluddin P.W. 4 which has not been spelt out by him at all. According to his evidence incident occurred 45 minutes later than as alleged by the prosecution, and place of murder was 100-150 paces away from his shop. He had not deposed regarding shooting being made in his shop or presence of blood there. He was the best witness but prosecution has failed to establish the charge through his evidence. His testimony in conjunction with the testimonies of other two witnesses, P.W. 5 and P.W. 6 shattered the prosecution case. 51. We, also find that neither the informant nor any other witnesses was present at the time when the incident occurred. Closure of bulb shop of Mohd. Bashir @ Pappu, P.W. 6, absence of bulb, absence of blood on the clothes of the informant, absence of identity of Guddu, whose motor-cycle was alleged to have been picked up, contradictory and unnatural statements by informant, lodging of concocted FIR after making the same ante timed etc., all these facts makes informant a wholly unreliable and untrustworthy witness. It is culled out from his deposition that number of injuries is not commensurate with number of accused which is less and therefore participation of three persons in the shooting spree is not a proved fact. Appellant did not participate in the murder is also probablised from the fact that other eye-witnesses, PW 4, 5 and 6 did not depose against the appellant by admissible evidence. PW 4, Jalalluddin, was the owner of the barber kiosk, where the incident was alleged to have started and Mohd. Bashir @ Pappu, PW 6, was the shop owner at whose shop, informant was alleged to have gone to purchase the bulbs at the time of the incident. 52. Another disquite feature of this appeal is the investigation, which is full of pitfalls and is not above board. Investigating officer had left much to be desired from the very inception. He did not record the statement of the informant at the police station itself soon after lodging of the FIR, although he did only that for the whole of the night after reaching at the spot. Investigating officer had left much to be desired from the very inception. He did not record the statement of the informant at the police station itself soon after lodging of the FIR, although he did only that for the whole of the night after reaching at the spot. He did not even organised raids to apprehend the murderers during the whole night, even though they were resident of the same village where the murder occurred. I.O., even allowed the inquest to be delayed and to be performed by S.I., A.P. Maurya, next day at 11.30 a.m. Informant was a witness of inquest yet actual time of lodging of FIR is not mentioned in it. In police Form No. 13 columns are left blank, which, in the normal circumstances, where the FIR was already registered, should have been filled up. No attempt was made to obtain ballastic expert reports regarding recovered empties and seized country made pistols. From inside kiosk, no attempt was made to collect signs of firing and bullets, wads etc. although both entry wounds had their exits. No attempt was made by the I.O. to investigate the allegated motive part. No evidence has been spelt out by him as to at what time and date special report under Section 157 was dispatched to the concerned Magistrate. An over all picture of the investigation indicates that endeavour to decipher the real truth of the murder was left un-investigated. Lacklustre and intentional delay in performing un-eschewable steps of investigation appallingly erodes the credibility of the statements of the two investigating officers PW 8 and PW 9. 53. PW 1, Mushtaq Ahmad and PW 2, Badri, disowned recoveries being made in their presence but the prosecution failed to declare PW 1 hostile, leaving for us two contradictory statements by the same witness. Both PW 1 and PW 2 were categorical in their depositions that no recoveries, neither of the cartridges nor of the blood, were made by the I.O., PW 9, Kashi Nath Singh, in their presence, from any place including kiosk. Another dicey feature of the recoveries is that, according to the deposition of the informant, PW 3, he had heard only two shots being fired in the incident. No empties were thrown at the scene by the assailants. Another dicey feature of the recoveries is that, according to the deposition of the informant, PW 3, he had heard only two shots being fired in the incident. No empties were thrown at the scene by the assailants. How come so many empties and even live cartridges were found at different places on and around the alleged place of shooting remains unexplained. 54. Prosecution did not got proved Ext. Ka 1/Ext. Ka 11 recovery memo, to establish the recovery of country made pistol at the discloser made by the appellant from P.W. 8, who had dictated the same, to establish the charge under Section 25 Arms Act. No independent witness was attached with the said recovery. Recovered pistol was not got checked from the ballistic expert for it’s use in the crime. P.W. 8 and 9 did not know the boundaries of the place of recovery. The recovery was made from an open place assessable to all and sundry from near a road and hence cannot be said to be in personal knowledge of the appellant. It is highly unsafe to base a conviction on such evidences by which the prosecution has failed to proved the charge to the hilt. Having gone through the evidences, chances of planting the weapon cannot be ruled out. 55. Autopsy report contradicted ocular testimony of eye-witnesses of firing being made by three persons. The two entry wounds had blackening and charring in them, which indicated shooting from a close proximity, probably from point blank range, and therefore, at the worst, only two persons can be attributed the role of shooting down the deceased. When the informant was faced with such difficult question, in an attempt to make his version consistent with the autopsy report, he quickly adjusted the case and deposed that he had heard only two shots which were fired in the incident. This diminishes prosecution allegation of participation by three accused and firing resorted to by three persons. Since the accused who had been falsely implicated is not known, the benefit of doubt had to given to each one of them. 56. Critically appreciating over all picture presented by the prosecution as has been discussed above, the in-escapable conclusion is that the prosecution has failed to discharge it’s initial burden of proof by cementing appellant’s guilt to the hilt on both the counts for which he was charged. 56. Critically appreciating over all picture presented by the prosecution as has been discussed above, the in-escapable conclusion is that the prosecution has failed to discharge it’s initial burden of proof by cementing appellant’s guilt to the hilt on both the counts for which he was charged. Forming such an opinion, it is wholly un-necessary for us to discuss defence witnesses and the defence plea set up by the appellant. 57. Closing our discussion,we sum up, that prosecution has failed to bring home the guilt of the appellant home and therefore he deserves acquittal. 58. This Appeal is allowed. Convictions and sentences of the appellant on both the charges, under Section 302/34, I.P.C. and 25 Arms Act, recorded by Additional District & Sessions Judge/Fast Track Court No. 1, Azamgarh vide his impugned judgment and order dated 25.2.2006, rendered in Sessions Trial No. 645 of 2001, State v. Sahim and others, (under Section 302/34, I.P.C.) and S.T. No. 646 of 2001, State v. Sahim, (under Section 25 Arms Act), both relating to police station Rani Ki Sarai, District Azamgarh, are hereby set aside and the Appellant is acquitted of those charges. He shall be released from jail forthwith unless he is incarcerated in other case. 59. Let this judgment be notified to the trial Court for it’s intimation and further action. ———