JUDGMENT U.C. Dhyani, J. One Mansab Ali addressed a complaint to the Inspector In-charge of Police Station, Laksar, District Haridwar regarding the murder of his younger brother Dr. Ayyub. As per the complaint, in the intervening night of 8/9.07.2001, Dr. Ayyub was sleeping in front of his house. At 01:00 a.m., informant heard the cries of his brother. On hearing the cries, informant along with his younger brothers Qayyum, Haji Kallu and Mohsim reached there. They saw in the electric light that Zakir, Sehran, Irsan, Sabir and Wahid were inflicting blows with armaments on his brother. Zakir was having balkati (sharp edged weapon used for cutting trees), Sehran was carrying patal-dati (sickle), Irsan was armed with country made pistol, Sabir was having a saria (iron rod) and Wahid was carrying a sword in his hand. All the accused persons were inflicting blows on Dr. Ayyub with the armaments, which they were carrying in their hands. When informant and others raised alarm, accused persons gave blows on them also, as a result of which, Qayyum and Haji Kallu sustained injuries. Many a people came there. Accused fled away from the scene of occurrence. Dr. Ayyub died on the spot. Qayyum was taken to hospital for treatment. Accused persons killed Dr. Ayyub because of enmity. On the basis of said complaint, a chik FIR was registered on 09.07.2001 at 03:10 a.m. The distance between the police station and the place of incident was only 04 kms, and hence, it appears that the FIR was lodged at the earliest opportunity. 2. Investigation started on the basis of said FIR. After the investigation, a charge sheet against the accused persons Zakir, Sabir, Sehran, Irsan and Wahid was submitted in relation to the offences punishable under Sections 147, 148, 149, 323, 307 and 302 IPC. When the trial began, charges were framed by learned trial court against the accused persons in respect of the offences punishable under Sections 147, 148, 323 / 149, 307 / 149, 302 / 149 IPC, to which they pleaded not guilty and claimed trial. Separate charge was framed against Zakir in respect of the offence punishable under Section 25 Arms Act also and another charge was framed against Wahid in respect of offence punishable under Section 4 / 25 Arms Act also, to which both of them pleaded not guilty and claimed to be tried. Separate charge was framed against Zakir in respect of the offence punishable under Section 25 Arms Act also and another charge was framed against Wahid in respect of offence punishable under Section 4 / 25 Arms Act also, to which both of them pleaded not guilty and claimed to be tried. Prosecution examined as many as nine witnesses, viz., PW1 Mansab, PW2 Qayyum, PW3 Mohsim, PW4 Doctor Narendra Singh Mann, PW5 Yogesh Kumar, PW6 Doctor K.K. Karoli, PW7 SI D.S. Panwar, PW8 Arshad and PW9 SI Ranveer Singh. The substance of the incriminating evidence was put to the accused persons under Section 313 Cr.P.C., to which they said that they were falsely implicated in the case. DW1 Mansab s/o Zakir (different from PW1 Mansab s/o Ahmad Ali) was examined in defence. After considering the evidence, learned trial court convicted Zakir and Sehran in relation to the offences punishable under Sections 148, 307 / 149 and 302 / 149 IPC. Accused Sabir was convicted of the offence punishable under Sections 147, 323 / 149, 307 / 149, 302 / 149 IPC. All the three were sentenced appropriately. Accused persons Irsan and Wahid were exonerated of all the charges levelled against them. Zakir was exonerated of the charge punishable under Section 25 Arms Act. Zakir, Sehran and Sabir, being aggrieved by the conviction and sentence awarded to them, preferred present Criminal Appeal. Aggrieved against the acquittal of Irsan and Wahid, two separate Government Appeals were preferred by the State. One was against their acquittal in connection with the offences punishable under the Indian Penal Code and the other was against the acquittal of Wahid under Section 4/25 of the Arms Act. Since the factual matrix of all the appeals is the same, therefore, all the appeals are being disposed of by this common judgment and order. Ms. Prabha Naithani, Advocate was appointed Amicus Curiae to argue the case on behalf of the accused-respondents also. 3. PW1 Mansab Ali, in his examination-in-chief, supported prosecution story and proved the contents of his complaint (Ext.Ka-1), a description of which has already been given in the inaugural paragraph of this judgment. It will be a mere repetition of facts, if deposition made by him in the course of his examination-in-chief, is reproduced here. Hence the same is being avoided for the sake of brevity. It will be a mere repetition of facts, if deposition made by him in the course of his examination-in-chief, is reproduced here. Hence the same is being avoided for the sake of brevity. PW1 said, in the cross-examination, that Ayyub and his (PW1’s) houses were situated within the same boundary and were facing each other. PW1 and his brother PW 2 Qayyum were sleeping in the sehan (courtyard) of the said boundary. The houses of PW1 and PW 2 were separate. He heard the cries at 01:00 a.m. Thereafter he reached on the scene of crime. PW1 and PW 2 reached together. PW 3 Mohsim and Haji Kallu (not examined) also reached there from other sides. 4. Although PW2 Qayyum also supported prosecution story, but there were glaring contradictions in his evidence and in the evidence of PW1. Whereas PW1 said that he along with his brother PW 2 were sleeping in the courtyard within the same boundary, PW2 said that he was sleeping in his own house. PW2 saw the incident in the light of electric bulb, which was not shown in the site plan. PW2 said that when he tried to save Dr. Ayyub, accused persons committed assault on him, as a consequence of which, he (PW2) also sustained injuries. He was taken to hospital by PW1 in a tractor trolley. Victim Dr. Ayyub was not taken to the hospital. It is astonishing that whereas one brother (PW 2) was taken to hospital, the other brother (victim), whose condition was critical, was not provided medical aid. Even if it was apprehended that the victim has died, he should have been given the medical aid promptly in the hope of some miracle to happen. PW 2 also did not care to take victim to the hospital. Whereas the condition of victim was critical, PW2’s condition was not so serious. No prudent person will accept such conduct of PW1 and PW 2 and as such, will not believe the testimony of PW1 and PW2. Two brothers were so concerned about each other that PW1 ran to save PW2’s life but the victim, another brother, was left in the lurch by both of them (PW 1 as well as PW 2). 5. There is yet another aspect of the matter. Two brothers were so concerned about each other that PW1 ran to save PW2’s life but the victim, another brother, was left in the lurch by both of them (PW 1 as well as PW 2). 5. There is yet another aspect of the matter. There were serious contradictions in the testimony of PW1, PW2 vis-a-vis site plan (Ext.Ka-9), which was proved by PW9 SI Ranveer Singh. Although the houses of Ibrahim and Rehmat, who had no concern with the facts of the case, were shown in the site plan, the location of the houses of PW1 and PW2, which was so important to the facts of the case, was not shown in the said location map. 6. Assuming for the sake of argument that the houses of PW1 and PW2 were situated within the same boundary and the victim was sleeping in the courtyard of his house situated within such boundary, the normal behaviour of a prudent person in distress will be that he will run towards the houses of his brothers / relatives / acquaintances for help, instead of running to an isolated place like kharanja (brick laid path), where there is no scope of seeking help from anybody in the dead of night. In the instant case, the victim was shown running to such an isolated place. 7. Although PW1 & PW2 said that they saw the accused persons in the light of electric bulb, but surprisingly the same was also not indicated in the site plan (Ext.Ka-9). PW1 was shown the site plan by learned defence counsel in the course of cross-examination before the trial court. PW 1 admitted that such a place was not shown in the site plan. In such a situation, it is difficult to believe that the place was well connected with the electricity. There is a big question mark on the source of light on the place of occurrence at the relevant time. 8. PW 1 admitted in the cross-examination that he, Dr. Ayyub and PW 2 were real brothers but were residing separately. On the fateful night, he was sleeping in the sehan of his house. PW 2 also said that he was sleeping in his own house. 8. PW 1 admitted in the cross-examination that he, Dr. Ayyub and PW 2 were real brothers but were residing separately. On the fateful night, he was sleeping in the sehan of his house. PW 2 also said that he was sleeping in his own house. In a situation like this, it is difficult to believe that PW1 or PW2 heard the cries of victim in the dead of night or even if they heard the same, it is difficult to accept that they saw the assailants, who fled away from the scene of crime. It will be worthwhile to mention here that PW 1 and PW 2 were related witnesses and their testimony was to be scrutinized with vengeance. These witnesses could not pass the test of such scrutiny. No independent witness, whose house was in the vicinity of the place of occurrence, and who heard the cries of victim, was produced on behalf of the prosecution. 9. The motive to commit the murder was attributed to the dispute over the division of drawing room. It was said that an altercation took place between Dr. Ayyub and accused persons over the said drawing room and accused persons harboured grudge against victim on account of the same, but, as has been said earlier, the places where the houses of accused persons were situated, were not shown in the site plan. The question of division of drawing room would have arisen only when the houses of accused persons were adjoining or were well connected with the said drawing room. No other motive came to the fore. The dispute over the drawing room, as also the motive to commit the crime was not proved. 10. The evidence tendered by PW3 Mohsim was also not believable, in as much as, it was not known from where Mohsim came on the place of incident? The tone and tenor of the statement of PW3 suggested that he was not present when the alleged incident took place. The inference would be that PW 3 was not an eyewitness to the incident. 11. It was stated that three empty shells /cartridges were found on the rooftop of Zakir (accused) on 09.07.2001, recovery memo (Ext. Ka-11) whereof, was prepared. Such recovery memo did not bear the signatures or thumb impressions of accused Zakir. The inference would be that PW 3 was not an eyewitness to the incident. 11. It was stated that three empty shells /cartridges were found on the rooftop of Zakir (accused) on 09.07.2001, recovery memo (Ext. Ka-11) whereof, was prepared. Such recovery memo did not bear the signatures or thumb impressions of accused Zakir. Two people i.e. Fazla and Mohsim were made the witnesses to such recovery, but Fazla was not examined on behalf of prosecution and PW 3 Mohsim did not say a word about such recovery. If cartridges were found from the rooftop of the appellant Zakir, the same suggested that he fired from his rooftop. The question is - why will he fire upon somebody from his rooftop? Nobody came to depose from the crowd that Zakir fired upon somebody in self-defence. There was, therefore, no linkage of such cartridges with the crime in question. 12. Recovery memo (Ext. Ka-10) of blood stained soil was prepared by the Investigating Officer . Recovery memos of blood stained iron rod, patal (a sharp edged weapon) and balkati (another sharp edged weapon) were also prepared (Ext. Ka-12, Ext. Ka -13 and Ext. Ka-14), but the report of chemical analysis was not brought on file to show that such articles contained human blood. They have not been linked with the crime in question. Recovery memos of recovery of iron rod, patal, balkati and country-made pistol contained the signatures of witnesses Shaukat and Ali Hasan. The said recovery was made in one sequence. The same people were made the witnesses in each recovery memo, but none of them was examined before the trial court. Such fact raises a question mark on the recovery of such weapons. It was not established that the injuries sustained by the victim/injured person were inflicted by the accused persons-appellants with the weapons which they were carrying. In other words, the use of armaments which were said to be recovered from the possession of accused-appellants, were not established (in the alleged crime). 13. 10 lacerated wounds along with two incised wounds were found on the dead body of victim when postmortem on dead body of deceased was conducted by PW 6. Is it possible to hold that the victim sustained lacerated wounds with such armaments which were shown to be in possession of the accused persons ? 14. 13. 10 lacerated wounds along with two incised wounds were found on the dead body of victim when postmortem on dead body of deceased was conducted by PW 6. Is it possible to hold that the victim sustained lacerated wounds with such armaments which were shown to be in possession of the accused persons ? 14. The conclusion on the basis of above discussion therefore, would be, that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. 15. Appellant Sehran claimed juvenility. An inquiry was conducted to ascertain his age through ossification test. The Chief Medical Officer concerned reported that the age of Sehran, as on 18.09.2012, was between 24–36 years. The alleged incident took place on 8/9.07.2001. By that analogy, he was not a juvenile on the date of incident. His average age on that date was 18 years. We agree with the finding of learned court below that Sehran was not a juvenile when the incident took place. So the claim of juvenility of Sehran is rejected, but the appeal preferred by him, is allowed. 16. Respondent Wahid was exonerated of the charges levelled against him by learned trial court. Government Appeal was preferred against such acquittal. PW 8 Arshad was the witness relating to the recovery of sword at the instance of Wahid. But the evidence tendered by PW 8 did not inspire confidence. Conviction can not sustain only on the basis of uncorroborated and fragile evidence of PW 8. There is, therefore, no scope of success of appellant in the Government Appeals preferred against the acquittal of respondent Wahid in respect of the offences punishable under the Indian Penal Code and the other punishable under the Arms Act. 17. Although DW 1 Mansab son of Zakir was examined in defence to show that Wahid was not present on the place of incident, but such plea of alibi of respondent Wahid is not being discussed here, in as much as, it has been held above, that the prosecution could not prove the case against respondent Wahid beyond reasonable doubt. 18. The evidence directed against the respondent Irsan was also not acceptable in view of the fact that no recovery of any weapon was shown against him. 18. The evidence directed against the respondent Irsan was also not acceptable in view of the fact that no recovery of any weapon was shown against him. It was the evidence of prosecution that a country made pistol was recovered from the possession of appellant Zakir, who said that such country made pistol was given to him by the respondent Irsan. Thus the recovery of country made pistol at the instance of Zakir was no recovery against Irsan in the eye of law. Government Appeal against the acquittal of Irsan also fails and no interference is called for in the judgment rendered by learned court below as regards the acquittal of respondent Irsan. 19. The Criminal Appeal preferred on behalf of appellants Zakir, Sehran and Sabir is thus allowed. Impugned judgment and order dated 15.10.2003, so far it relates to the conviction and sentence of the appellants Zakir, Sehran and Sabir, is hereby set aside. The appellants are on bail. Their bail bonds are cancelled and the sureties are discharged. They need not surrender. 20. No interference is called for in the impugned order dated 15.10.2003, so far as it relates to the acquittal of respondents Wahid and Irsan. Government Appeals thus fail and are accordingly dismissed. 21. Let a copy of this judgment along with lower court record be sent to the court below.