JUDGMENT Mr. Rakesh Kumar Jain, J.: - Two criminal appeals bearing CRA-D-974-DB of 2010 and CRA-D-891-DB of 2010 are being disposed of together as they arise out of order of the Trial Court dated 30.08.2010/31.08.2010, convicting both the appellants for the offence punishable under Sections 302 and 392 of the Indian Penal Code, 1860 [for short “IPC”] and sentencing them to rigorous imprisonment for life with fine of Rs.2,000/- each and in default of payment of fine, rigorous imprisonment for one month, under Section 302 IPC to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.2,000/- and in default of payment of fine, further to undergo rigorous imprisonment for one month, under Section 392 IPC. Both the sentences were ordered to run concurrently and the period of detention during investigation and trial was ordered to be set off against their substantive sentence. 2. The FIR (Ex.PW14/B) was registered on the statement of Gurjit Singh (PW2), which reads as under:- “I am resident of aforesaid address and is working as Manager at I.B.P. Auto Service Petrol Pump at Hardo-Jhande. Today, at about 8.15 PM, I was coming to my office after locking the store at the back of my office and in the meantime, two youth came to the Pump on red colour Hero Honda Motor cycle, without number, out of whom, the driver of motor cycle was of Mullah fashion having trimmed beard and rider of it was of turban wearing youth, who are aged about 24/25 years. The rider was wearing coiled turban of green colour and also wearing Pant, Kameez having fold (Bukal) of Lohi. The second youth was wearing Pant, Kameez and piece of cloth was worn on the head. They stopped at the Petrol Machine for taking petrol in the Motor cycle, where Gajjan Singh resident of Ahmedabad was delivering petrol, who put the petrol in the motor cycle and demanded money from the aforesaid persons, out of them, one person told that money is to be given to you and he took out a rifle like weapon from the Bukkal (fold) of Lohi, shot at Gajjan Singh who fell down on the ground. I, under fear, continued to see all this occurrence, from behind the wall of the office, in the light of electricity. I, under fear, continued to see all this occurrence, from behind the wall of the office, in the light of electricity. Gurdip Singh who was putting diesel at the Diesel Machine, ran away on hearing the voice of fire-shot. Both youths went inside the office and tried to open the drawer and when it was not opened, they fired a shot from their weapon and broke the lock of the drawer and took out a sum of Rs.40,000/-, in the denomination of Rs.100/100/- having four bundles of Rs.10,000/- each bearing stamp of our petrol Pump, Hardo-Jhande and ran away on their motor cycle. Thereafter, I went to Gajjan Singh & saw him, who had died due to fire shot. In the meanwhile, Vijay Kumar, Salesman also came there, to whom I left there to guard the dead body and was going to report the matter to you and you met. Action may be taken. I can identify the aforesaid two persons on coming before me.” 3. Inquest report (Ex.PC) was prepared on the same day of the occurrence. The dead body was sent for post mortem and request for autopsy was made vide Ex.PB. Dr. Gurmukh Singh (PW1) conducted post mortem and found the following injuries on the person of deceased Gajjan Singh:- “1. 0.75 x 0.75 cm lacerated penetrating wound present in abdomen in upper part on right side just below the rib cage, margins were inverted, 3.5 cm from the mid line. Direction was towards left side. 2. Lacerated wound 4 x 5 cm present on the left side of middle of abdomen in posterior axillary line. Margins of wound were everted, part of gut and omentum was protruding out of the wound.” 4. In his opinion, the cause of death was haemorrhage and shock due to fire arm injury on the abdomen. It was found anti-mortem in nature and sufficient to cause death in ordinary course of nature. 5. Besides Dr. Margins of wound were everted, part of gut and omentum was protruding out of the wound.” 4. In his opinion, the cause of death was haemorrhage and shock due to fire arm injury on the abdomen. It was found anti-mortem in nature and sufficient to cause death in ordinary course of nature. 5. Besides Dr. Gurmukh Singh (PW1), the prosecution examined Gurjit Singh (PW2), author of the FIR and the alleged eyewitness, who had stated that on 12.12.2003 at 8.15/20 PM, when he was going to lock the store from his office, she saw two persons on a red motorcycle without number, driven by one Mulla Shave youngman wearing pant, shirt and patka on his head and one Sikh gentleman having green turban and wrapped with a Lohi, sitting as pillion on the motorcycle, entered the petrol pump. At that time, Gajjan Singh (deceased) was putting petrol in the motorcycle who demanded money from those persons, but the pillion rider fired from country made pistol which he had concealed in the Bukkal (fold) of his Lohi. Gajjan Singh fell down. He ran back out of fear behind the office and watched the occurrence. Thereafter, the said persons fired shot at the lock of the table lying in the office, opened the same and some currency having denomination of Rs.100/- were taken away. In cross-examination, he stated that he had recorded in his statement that Jagtar Singh was armed with .315 bore rifle with which he committed murder of Gajjan Singh and also broke open the lock in order to commit robbery. In further cross-examination, he stated that the appellants were identified by him in the Police Station, Batala at the instance of the police. He had seen the photographs of the appellants in the newspaper. The appellants had wrapped Lohi around them and had also covered their faces with Lohi at the time of occurrence. 6. Lakhwinder Singh (PW3) is the brother of the deceased who had identified his dead body. Satish Chander, Naksha Nawis, was examined as PW4 who prepared the scaled site plan Ex.PG. 7. Inspector Dilbagh Singh, Incharge Traffic, Amritsar was examined as PW5 who had stated that he was posted as SHO, Police Station Sadar, Batala on 01.05.2004 and was entrusted with the investigation of this case. Satish Chander, Naksha Nawis, was examined as PW4 who prepared the scaled site plan Ex.PG. 7. Inspector Dilbagh Singh, Incharge Traffic, Amritsar was examined as PW5 who had stated that he was posted as SHO, Police Station Sadar, Batala on 01.05.2004 and was entrusted with the investigation of this case. During investigation, he arrested Jagtar Singh (appellant) on 01.05.2004 where he had suffered his disclosure statement (Ex.PH) which was attested by SI Surinder Kumar and HC Harbans Singh. He arrested Satnam Singh on 03.06.2004 who suffered his disclosure statement (Ex.PI). In his cross-examination, he stated that the appellants were brought on production warrants from judicial lock-up for effecting arrest but no recovery was effected during investigation. 8. Karnail Singh (PW6) is the person before whom the appellants alleged to have made extra-judicial confession of their crime. He is father-in-law of deceased Gajjan Singh and turned hostile. 9. Gurdeep Singh (PW7) is another person who has been produced as an eye-witness. He stated that on the fateful day, he was also present at the petrol pump as he was working on Diesel dispensing machine. He came to know from the newspaper about the person who had committed the crime at the petrol pump which is within the jurisdiction of Police Station Kathu Nangal. He identified them in the Police Station. However, in his cross-examination, it is admitted that he went to Police Station Kathu Nangal on the police motorcycle and had also returned with the Inspector on the same motorcycle. He further admitted that Head Constable of Police Station Kathu Nangal had come to him and took him to Police Station where the police told him that the appellants are the persons who had killed Gajjan Singh. The police had never arranged any test identification parade in the presence of any Executive Magistrate. It was also admitted that the assailants came with muffled faces at the time and place of occurrence. 10. HC Surjan Singh (PW8) tendered his affidavit (Ex.PK), whereas HC Jaswant Singh (PW9) tendered his affidavit (Ex.PL). HC Narinder Singh (PW10) is the person who had delivered the special report. 11. It was also admitted that the assailants came with muffled faces at the time and place of occurrence. 10. HC Surjan Singh (PW8) tendered his affidavit (Ex.PK), whereas HC Jaswant Singh (PW9) tendered his affidavit (Ex.PL). HC Narinder Singh (PW10) is the person who had delivered the special report. 11. SI Partap Singh (PW11) stated that on 11.04.2004, when he was posted at Police Station Kathu Nangal, District Majitha, along with ASI Kamal Kishore and ASI Jarnail Singh, during Naka, Satnam Singh (appellant) was apprehended in connection with the case FIR No.43 dated 11.04.2004, under Sections 307, 148, 149 of IPC and 25 of the Arms Act with one red colour motorcycle make Hero Honda, who had divulged about the murder at petrol pump in village Hardo-Jhande regarding which FIR No.176 was recorded. In his cross-examination, he admitted that he had deposed against the appellants in two criminal cases at Amritsar. 12. Jarnail Singh, Retired SI (PW12) disclosed the manner in which the appellants were arrested at Naka at Police Station Kathu Nangal on 11.04.2004. Jagtar Singh, Retired SI was examined as PW13. 13. Inspector Varinder Singh (PW14) admitted that in the inquest report (Ex.PC) prepared at the place of occurrence, presence of Gurdeep Singh is not shown in the rough site plan (Ex.PW14/C). He also admitted that no sample of burnt explosive was taken into possession at the spot and no burnt currency notes were recovered. The prosecution also produced reports of the Chemical Examiner (Ex.PY & Ex.PZ). 14. All the incriminating material were put to the appellants by the Trial Court while recording their statements under Section 313 of Cr.P.C. However, the appellants denied their involvement, alleged their false implication and also led evidence in their defence by examining Daljit Kaur (DW1). 15. Learned counsel for the appellants have argued that the appellants have been framed in this false case at the instance of the investigating officer. Gurjit Singh (PW2), who is alleged to have seen the occurrence, had stated that the person sitting on the pillion seat fired from the country made pistol, whereas the case of the prosecution was that a .315 bore rifle was used in the alleged crime. Gurjit Singh (PW2), who is alleged to have seen the occurrence, had stated that the person sitting on the pillion seat fired from the country made pistol, whereas the case of the prosecution was that a .315 bore rifle was used in the alleged crime. However, neither the country made pistol nor .315 bore rifle was recovered in the present case, which otherwise has been recovered on account of disclosure statement (Ex.PW13/B) which is alleged to have been made by Satnam Singh (appellant) in a case registered FIR No.26 dated 29.04.2004, under Sections 307, 323/34 IPC & 25/27/54/59 of the Arms Act, at Police Station Rangar Nangal. It is argued that even the said recovered .315 bore rifle was not sent to the FSL in order to determine as to whether it was the same one which was allegedly used in the crime. Report (Ex.PZ) has been obtained from the FSL according to which, two pieces of lead core of bullet and four pieces of jacket of bullet have been opined to be part of .315 inch jacketed bullet. It is submitted that Gurjit Singh (PW2) has admitted that he had identified the appellants at the instance of police at Police Station Batala, otherwise, according to him the accused had wrapped himself in a Lohi and also covered his face with it at the time of occurrence. It is further argued that in such a circumstance, the witness cannot be believed to have seen the occurrence especially when no test identification parade was held by the police and the photographs of the appellants were published in the newspaper. It is further argued that the presence of other alleged eye-witness Gurdip Singh (PW7) is not even mentioned in the inquest report. Though, according to him, he was very much present at the scene of occurrence where the appellants had stayed for 10 minutes. Counsel for the appellants have submitted that PW7 has been introduced lateron as he himself admitted that he was taken to the Police Station by the Head Constable on a motorcycle and dropped by the Inspector on the same motorcycle after identifying the appellants in Police Station, but in his cross examination, he admitted that the assailants (appellants) were in muffled faces when they came at the scene of occurrence. It is, thus, argued that in these circumstances, where the identification of the appellants was not there and when the alleged eye-witness has not clearly seen the appellants who were in muffled faces and were identified in the Police Station where they were brought on production warrant being in jail in another case, at the instance of the police, a suspicion arises about their involvement in the alleged crime. It is further argued that the investigating officer had earlier also tried to frame the present appellants in other criminal cases, but they have been reprimanded with specific strictures by this Court vide order dated 30.05.2008 passed in CRA-D-720-DB of 2007 titled as Jagtar Singh alias Kala vs. State of Punjab. 16. It is further submitted that the prosecution has tried to knit the web by producing Karnail Singh (PW6) as a witness to the extrajudicial confession, but fortunately for the appellants, he turned hostile. Even otherwise, it was highly improbable for the appellants to have confidence in PW6 who happened to be the father-in-law of deceased Gajjan Singh. 17. On the other hand, learned State counsel has vehemently argued that the appellants have suffered disclosure statements in pursuance thereof, recovery of .315 bore rifle has been effected. The vehicle used in the crime, namely, red colour Hero Honda, was also found in their possession when they were apprehended at the Naka on 11.04.2004 and arrested in a case registered vide FIR No.43 dated 11.04.2004, under Sections 307, 148, 149 of IPC and 25 of the Arms Act. She further submitted that Ex.PY is the report of the FSL according to which pieces of lead core of bullet and pieces of jacket of bullet have been opined to be part of .315 inch jacketed bullet which connects with the weapon of offence having been used by the appellants in the alleged crime. She further submitted that there was no enmity of PW2 and PW7 with the appellants for implicating them in a false case. 18. We have heard counsel for the parties and perused the available record with their able assistance. 19. In this case, the prosecution primarily relies upon the statements of PW2 and PW7 who were allegedly present at the scene of crime. Both the witnesses have stated that the appellants were not previously known to them. 18. We have heard counsel for the parties and perused the available record with their able assistance. 19. In this case, the prosecution primarily relies upon the statements of PW2 and PW7 who were allegedly present at the scene of crime. Both the witnesses have stated that the appellants were not previously known to them. Their faces were muffled at the time of occurrence and PW2 had stated that the person who had fired had used country made pistol which was also put to the accused while recording his statement under Section 313 Cr.P.C., but it was not put to them that there was any .315 bore rifle which was used in the crime. Both the witnesses have also stated that they had identified the appellants in Police Station at the instance of police, rather PW7 had stated that he was even taken to the Police Station by Head Constable and dropped by the Inspector on his motorcycle where he was asked to identify the appellants. It is also admitted fact that no test identification parade was held in the presence of any Executive Magistrate especially in a case where the entire case rests on the identification of the accused. It is also an admitted fact that no recovery of any kind has been effected by the prosecution in the present case, namely, of the weapon of offence alleged to have been used or the amount which is alleged to have been looted from the petrol pump. The recovery of .315 bore rifle is effected in a case registered vide FIR No.43 on the disclosure statement made by Satnam Singh (appellant) but still the said weapon was not sent to FSL to find out as to whether it was even in working condition or was used in the alleged crime. It is also admitted fact that no material was recovered and sent to the FSL from the box which was broke open with the use of gun fire shot. It appears that PW7 has been introduced lateron, otherwise he would have been the first person to be mentioned during investigation when the inquest report was prepared. Conviction of the appellants is based and rests on their disclosure statement which were recorded in custody and attested by the police officials. 20. It appears that PW7 has been introduced lateron, otherwise he would have been the first person to be mentioned during investigation when the inquest report was prepared. Conviction of the appellants is based and rests on their disclosure statement which were recorded in custody and attested by the police officials. 20. Since we are of the view that the evidence of PW2 and PW7 is not worth credence and does not inspire confidence as it raise many doubts, therefore, the benefit of doubt deserves to be extended to the appellants. Hence, keeping in view the totality of the facts and circumstances, both the appeals are hereby allowed, order of conviction and sentence dated 30.08.2010/31.08.2010 passed by the learned Trial Court is set aside and both the appellants are hereby acquitted and ordered to be released forthwith, if they are not involved any other case.