JUDGMENT By the Court.—These four appeals arise out of the judgment and order dated 17.7.2009 passed by Additional Sessions Judge, Fast Track Court No. 1, Budaun in ST Nos. 530/2000 and 740 of 2000 by which appellants Desh Raj, Raj Pal Pappu and Prakash have been convicted for the offences under Sections 302/34 IPC and 323/34 IPC and sentenced to undergo life imprisonment with fine of Rs. 10,000/-. In case of default in payment of fine to undergo further one year and six months rigorous imprisonment respectively. Appellants Pappu and Raj Pal have also been convicted for the offence under Section 25 Arms Act and have been sentenced to undergo two years’ rigorous imprisonment with fine of Rs. 2,000/-each. In case of default in payment of fine to undergo further three months rigorous imprisonment. All the sentences were directed to run concurrently. Criminal Appeal No. 4274 of 2009 Desh Raj v. State of U.P., has been filed by appellant Desh Raj. Criminal Appeal No. 4273 of 2009 Prakash v. State of U.P., has been filed by appellant Prakash. Criminal Appeal No. 5336 of 2009 has been filed by appellant Pappu and Criminal Appeal No. 5738 of 2009 Raj Pal v. State U.P., has been filed by appellant Raj Pal. The aforesaid proceedings arise out of Case Crime No. 586/99 (ST No. 530 of 2000), under Sections 302/34, 323/34 IPC, PS Bilsi, District Badaun and Case Crime Nos. 587 of 1999 and 588 of 1999 (S.T. No. 740 of 2000) under Section 25 Arms Act registered against Pappu and Raj Pal only. 2. Prosecution story as reflected from the record is as follows : On 22.12.1999 at 4 p.m. the first informant Ant Ram alongwith his son Karru @ Rajeshwar victim(deceased) and nephew Tejpal and Ajai Pal were returning from their field. The accused Raj Pal and Pappu armed with country made pistols of 315 bore, accused Desh Raj armed with gandasa and accused Prakash empty handed met them near the field of Meera Devi, wife of Shiv Pal of village Barni. Accused Prakash said to Karru that he was acting smart. Thereafter on the asking of Rajpal, Prakash caught hold of Raheshwar. Immediately thereafter Raj Pal fired upon Karru @ Rajeshwar by the fire-arm in his hand. Thereafter Pappu also fired upon Rajeshwar @ Karru from the fire-arm in his hand. Accused Prakash said to Karru that he was acting smart. Thereafter on the asking of Rajpal, Prakash caught hold of Raheshwar. Immediately thereafter Raj Pal fired upon Karru @ Rajeshwar by the fire-arm in his hand. Thereafter Pappu also fired upon Rajeshwar @ Karru from the fire-arm in his hand. The informant, his nephew Tej Pal and Ajai Pal started shouting but nobody responded because of fear. Deceased Rajeshwar expired on the spot. Accused Desh Raj caused injury to Ajai Pal by inflicting a blow from the blunt side of the Gandasa, which hit him on the left temple. It was stated that the incident had been seen by informant, Tej Pal and Ajai Pal. Because of fear all of them ran towards the village. They were followed by the accused. It was stated that the body of the deceased Rajeshwar was lying at the site. A First Information Report to that effect was lodged at 7 p.m. on the same day with Police Station Bilsi which is at a distance of 6 Kms from the place of incident and was registered as Case Crime No. 586 of 1999, under Section 302/323 IPC. S.I. P.L.Gupta alongwith other police personnel arrested the accused of Case Crime No. 586/98 from the Baithak of accused Raj Pal on receiving information about their presence. At the time of raid, three persons were found sitting on a cot. On being asked, they disclosed their names as Raj Pal, Pappu and Desh Raj. On further being asked about the death of Rajeshwar, all the three accused accepted their guilt and it was stated that they had killed Karru @ Rajeshwar alongwith one Prakash with the help of tamancha and Gandasa near the field of Meera Devi. The weapons used were recovered at the pointing out of Raj Pal and Pappu which were handed over by the aforesaid two accused themselves. Similarly Gandasa was recovered on the pointing out of Desh Raj from the room inside. Accordingly offence under Section 25 of the Arms Act was registered against accused Raj Pal and Pappu. 3. The inquest of the dead body was conducted on 22.12.1999 by SI P.L.Gupta and the dead body was sent for post-mortem. Post-mortem of the dead body was conducted by Dr.V.P.Bhardwaj on 23.12.1999. Accordingly offence under Section 25 of the Arms Act was registered against accused Raj Pal and Pappu. 3. The inquest of the dead body was conducted on 22.12.1999 by SI P.L.Gupta and the dead body was sent for post-mortem. Post-mortem of the dead body was conducted by Dr.V.P.Bhardwaj on 23.12.1999. In the post-mortem report submitted by the Doctor concerned, the following ante-mortem injuries were found on the body of the deceased: 1- cgqr lkjs dVs gq;s ?kko&flj ij 10 X 8 lseh0 ds {ks= esaA izR;sd dk lkbt-1-5 X 4 lseh0 ls 4 X -8 lseh0 rd Fkk rFkk xgjkbZ ekWl ls gM~Mh rd FkhA foPNsnu ij flj dh gfM~M;ksa esa pksVksa ds uhps dVs ds fu’kku ik;s x;sA 2- cgqr lkjs dVs gq;s ?kko&xnZu ij lkeus dh vksj izR;sd dk vkdkj 8 X 2lseh0 ls 3 X -5 lseh0 rFkk xqgk rd xgjkA foPNsnu ij ujol o jDr okgfu;ka] ekWlisf’k;ka Vªsgk o blksisxl dVs gq, ik;s x;sA 3- ,d dVk ?kko& 6 X 1 lseh0 X ekWalislh rd xgjk okW;s gkFk dh iq’r ijA foPNsnu ijekWlisf’k;ka] jDrokgfu;kW] rkaf=dk;as VsauMal dVs gq;s ik;s x;sA 4- ,d dVk ?kko&6 X 1-5 lseh0 X ekWlis'kh rd xgjk nkfgus da/ks ij lkeus dh vksjA 5- nks dVs ?kko&nkfgus gkFk dh gFksyh ij izR;sd 3 X 0-8 lseh0 X ekWalis’kh rd xgjkA 6- ,d dVk ?kko&4 X 1 lseh0 X ekWlis’kh rd xgjk] nkfgus iSj ij ckgj dh vksjA 7- rhu vkXus;kL= ds izos’k ds ?kko&nkfgus rjQ lhus ds fupys rFkk isV ds Åijh Hkkx esa&izRsd 1 X 1 lseh X xqgk rd xgjkA foPNsnu ij nkfguk QsQM+k] yhoj rFkk vkWrs dVh gq;h ik;h x;h rFkk xqgk esa [kwu Hkjk gqvk feykA vkSj rhu yEch cqyV dVs gq;s van:uh Hkkxkso xqgk ls feykA 8- ,d Hkqdk ?kko & 2 X 1 lseh0 X xqgk rd xgjk] isV ij ckW;h rjQA foPNsnu ij vkWrs dVh ik;h x;hA 9- ,d dVk ?kko psgjs ij ckW;h rjQ 2 X 0-5 lseh0 X ekWal rd xgjk foPNsnu ij tek [kwu feykA 10] ok;s gkFk dh fyfVy fQaxj rFkk fjax fQaxj dVdj vyx gq;h ik;h x;h aA foPNsnu ij jDrokfgfu;ka ladqfpr ik;h x;h A 4. Initially the investigation of the offence was done by SI P.L.Gupta. However, the investigation was thereafter transferred to SI M.P.Gangwar who filed the charge-sheet after completing the investigation. The trial Court framed the charges against the accused, who denied the charges and claimed trial. Initially the investigation of the offence was done by SI P.L.Gupta. However, the investigation was thereafter transferred to SI M.P.Gangwar who filed the charge-sheet after completing the investigation. The trial Court framed the charges against the accused, who denied the charges and claimed trial. On behalf of the prosecution Ant Ram, eye-witness and the informant was examined as PW1. He is the father of the deceased Karru @ Rajeshwar. Ajai Pal the other eye-witness was examined as PW2. He turned hostile. Dr. M.P.Gangwar who had treated the injured Ajai Pal was examined as PW3. He also proved the injury report. Sri Satveer Singh, Constable who had recorded the FIR was examined as PW4. He also proved the chik FIR. SI S.S.Pundir who was the IInd I.O. has been examined as PW5. Dr.V.P.Bhardwaj who conducted the post-mortem of the deceased was examined as PW6 and he also proved the ante-mortem injuries as were found on the body of the deceased. SI P.L.Gupta who was the Ist Investigating Officer and had also made recoveries of the weapons used in the incident was examined as PW7. The statement of accused were recorded under Section 313 Cr.P.C. They denied the charges and stated that they have been falsely implicated. On behalf of the accused one Komil Prasad the Lekhpal of the village at a particular point of time was produced as DW1. 5. The trial Court after considering the first investigation report, statement of PW1, the eye-witnesses as well as the post-mortem report as well as other evidence came to the conclusion that Rajeshwar had been done to death by the four accused as narrated in the First Information Report. Unauthorised fire-arms were recovered from accused Pappu and Raj Pal. Accordingly all the accused were convicted for the offence under Sections 302/34 and 323/34 IPC and have been sentenced as noted above. While accused Raj Pal and Pappu have also been convicted for the offence under Section 25 Arms Act and have been punished thereunder as recorded above. 6. Unauthorised fire-arms were recovered from accused Pappu and Raj Pal. Accordingly all the accused were convicted for the offence under Sections 302/34 and 323/34 IPC and have been sentenced as noted above. While accused Raj Pal and Pappu have also been convicted for the offence under Section 25 Arms Act and have been punished thereunder as recorded above. 6. Challenging the order of conviction Sri A.B.L.Gaur learned counsel for the appellants vehemently contended that from the ante-mortem injuries found on the body of the deceased as reflected from the post-mortem report and the statement of the Doctor who performed the post-mortem, namely V.P.Bhardwaj it was established beyond doubt that there were nine injuries other than the gun shot injury mentioned at serial No. 7 of the post-mortem report. Out of these nine injuries eight were big incised wounds and one was stab wound. It is his case that in the FIR as well as in the statement of the witnesses on behalf of the prosecution there was no allegation of any injury being caused upon the deceased except the gunshot injury. It is further stated that there is absolutely no evidence worth consideration which could establish that by which weapon, the stab wound had been caused to the deceased. He submits that the facts as disclosed in the First Information Report and the statement of the witnesses do not in any way corroborate/establish the injuries which have been found on the body of the deceased. Therefore, the entire story of the prosecution is falsified. He further submits that according to the First Information Report the first informant was present at the time of incident alongwith two other eye-witnesses, namely Tej Pal and Ajai Pal, who is said to have suffered Gandasa blow and was an injured witness. Tej Pal was the nephew of the first informant. Ajai Pal turned hostile and stated that he could not identify the assailants as there was no sufficient light. The other eye-witness Tej Pal, a close relation of the deceased was not produced as a prosecution witness for whatever reasons it may be. He therefore submits that the prosecution version has become doubtful and it cannot be said with certainty that the injuries found on the body of the deceased had been caused by the accused or he has been done to death by the accused. 7. He therefore submits that the prosecution version has become doubtful and it cannot be said with certainty that the injuries found on the body of the deceased had been caused by the accused or he has been done to death by the accused. 7. In reply, the learned Government Advocate submits that the first informant alongwith other persons had left the place of incident after gun-shots were fired upon the deceased and therefore, other injuries found on the body of the deceased could have been caused subsequently for which there could not have been any narration in the First Information Report. He further submits that the FIR is prompt. The fire-arm injuries have been suffered by the victim as stated in the First Information Report and the accused were specifically named therein. The prosecution case is supported by the evidence of eye-witness, namely Ant Ram and further that Ajay Pal has disclosed the date, time as well as the presence of the informant at the time of incident but subsequently at the time of identification of the assailants, he became hostile. Therefore, to that extent the prosecution case is supported by the evidence of Ajay Pal also. He therefore submits that the prosecution has been able to establish the charges against the accused. He further submits that the fire-arms which were recovered from Pappu and Raj Pal were got ballistically examined and the report of the ballistic expert established that the empty cartridges which were found at the site were of the same bore as of the fire-arm recovered from the accused. He then submitted that the three bullets were recovered from the body of the deceased which were of the same bore. In support of his contention, reliance has been placed upon the judgment of the Apex Court in the case of Kuriya and another v. State of Rajasthan, 2012 (10) SCC 433 . 8. We have heard learned counsel for the parties and examined the record of the present appeals. In support of his contention, reliance has been placed upon the judgment of the Apex Court in the case of Kuriya and another v. State of Rajasthan, 2012 (10) SCC 433 . 8. We have heard learned counsel for the parties and examined the record of the present appeals. On reading of the First Information Report, we find that it was alleged that on the fateful day Raj Pal and Pappu armed with country made pistols, Desh Raj armed with Gandasa and Prakash empty handed came at the site of the incident and on the asking of Raj Pal, Prakash caught hold of the deceased and thereafter the deceased was fired upon by Pappu and Raj Pal by the country made pistols in their hands. It was then stated that Desh Raj inflicted one wound from the blunt side of the Gandasa upon Ajai Pal. It was specifically stated in the FIR that the deceased had expired immediately and his dead body was lying in the filed at the site. 9. PW1 in his statement also admitted that the injuries had been inflicted only by fire-arm and there was no evidence worth mentioning which could reflect upon other injuries which were found on the body of the deceased and were nine in number. Eight of which were incised wound of large size while one was stab wound for which there is absolutely no evidence qua the person who inflicted the injury and by what weapon. In his statement PW1, the father of the deceased has specifically stated that he returned from the place of incident after half an hour and had a dialogue with the family members for an FIR being registered. Thereafter he visited the police station where after having a discussion with the Head Constable on the next day the FIR was lodged. In view of the said admission of the PW1 who is an eye-witness and in view of the nature of the injuries found on the body of the deceased viz-a-viz the incident disclosed in the FIR and so narrated by PW1 in his statement, we have every reason to doubt the veracity of the case of the prosecution. In our opinion, there is no explanation in respect of such large number of wounds found on the body of the deceased. In our opinion, there is no explanation in respect of such large number of wounds found on the body of the deceased. There is no reason for non-production of the eye-witness of the incident, namely Tej Pal in support of the prosecution. Ajay Pal the 3rd eye-witness turned hostile at the time of identification of the assailants. This creates a serious doubt in our mind qua the veracity of the case of the prosecution. We hold that the prosecution has not been able to establish its case beyond reasonable doubt. We have no hesitation to hold that the prosecution has failed to bring home the charges against the accused with certainty. The case of the prosecution is full of contractions, viz-a-viz the FIR, the statement of prosecution witnesses and the injuries found on the body of the deceased, which are material in nature. Hence the accused are entitled to benefit of doubt and the appeals are liable to be allowed. The judgment relied upon by learned AGA is distinguishable in the facts and circumstances of the case. Accordingly the appeals are allowed. The order of conviction and sentence dated 17.7.2009 recorded by the Additional Sessions Judge, FTC, Court No. 1, Badaun in Session Trial Nos. 530 of 2000 and 740 of 2000 are hereby set aside. The appellants are acquitted of the offence alleged. Accused Desh Raj, Raj Pal and Pappu who are said to have been confined to prison are directed to be released forthwith. So far accused-appellant Prakash is concerned, he is stated to be on bail. His bail bonds are cancelled and the sureties are discharged. We also provide that the accused shall comply with the provision of Section 437A Cr.P.C. —————