JUDGMENT Per: Hon’ble Servesh Kumar Gupta, J. Both the above-captioned appeals, having been preferred against the same judgment, are thus, being adjudicated together. 2. Criminal Appeal no.42 of 2011 has been preferred by the appellants Vipin & Pankaj challenging the judgment and order dated 21.02.2011 passed by the Sixth Additional Sessions Judge, Haridwar, finding them guilty for the offence under section 302/34 IPC and under section 25 of the Arms Act, wherefor they have appropriately been sentenced. 3. Criminal Appeal no.33 of 2011 has been filed by the appellant Babu Ram, assailing the selfsame judgment, as he was held guilty for the offence u/s 302/34 IPC. He, too, has appropriately been sentenced by the court for the said offence. 4. By an order dated 7.5.2007, the court below consolidated the S.T. no.91 of 2004 (crime no.73/2003 u/s 302/34 IPC), S.T. no.92 of 2004 (crime no.84/2003 u/s 25 Arms Act) and S.T. No.93 of 2004 (crime no.83/2003 u/s 25 Arms Act), as they all related to the same incident and were, accordingly, tried together. 5. As per the averments made in the body of the first information report (Ex.Ka-1), the incident, in question, relates back to the morning hours of 30th March, 2003, in between 5:15 to 5:30 A.M., when the victim Gopal, in his bullock-cart, was carrying the heap of sugarcane to be sold in a Mill. Complainant Shiv Kumar was also proceeding on foot behind the said cart. No sooner did the cart reached near the agricultural field of one Jaineshwar, appellants/accused, namely, Babu Ram, and his two sons, Vipin and Pankaj, appeared therefrom. Appellant Babu Ram then caught hold of Gopal and, at the same time, exhorted his sons to shoot him. In compliance of said directions, appellant Vipin, who was armed with a pistol, opened the fire which hit the victim on his buttock, as a result, he fell down in the adjacent wheat field. At that moment, appellant Pankaj, who too was having a pistol, opened fire upon the face of victim Gopal. Informant Shiv Kumar, who saw the entire occurrence, could save himself by hiding behind the said cart, and after that, he escaped from the spot. Another villager Salim, who was watering his field, also witnessed the occurrence and identified all the three culprits. Subsequent thereto, all the three assailants went towards the forest. Informant Shiv Kumar, who saw the entire occurrence, could save himself by hiding behind the said cart, and after that, he escaped from the spot. Another villager Salim, who was watering his field, also witnessed the occurrence and identified all the three culprits. Subsequent thereto, all the three assailants went towards the forest. The reporter further states that there was a criminal litigation ongoing between the parties wherein efforts were made for compromise, but in order to make those endeavours ineffective, Gopal was killed by the appellants on account of the animosity nurtured by them. With the above-averments, the report was lodged on the same day at 7:10 A.M. i.e. within two hours of occurrence at Police Station Laksar, District Haridwar. Chick report thereof is Ex.Ka-9. 6. The police then arrived at the place of occurrence and prepared the inquest report (Ex.Ka-4) at 10:10 A.M. of 30.03.2003. In the opinion of the members of inquest, death of victim took place on account of gunshot injuries caused by the accused persons, nonetheless, they all opined for post-mortem. Autopsy (Ex.Ka-3) on the dead body was conducted by PW5 Dr. K.K. Caroli, in the District Hospital, Haridwar on the same day at 4 P.M. The following ante-mortem injuries were found by the medical officer: - A. “Firearm wound of entry with tattooing, blackening, charring present of size 5 cm x 5 cm x bone deep. One bloodstained clot with fracture of left cheek. Beneath the said wound, Maxilla bone was found fractured. B. Firearm wound of entry on the right side lowest and back part of the buttock stained with blood. Margins inverted with tattooing and charring present. Its size was 1½ cm x 1½ cm x bone deep with fracture of lower bone. In the internal examination, base of skull, parietal bone and cheek bone were found fractured. Maxilla and mandible bones with brain matter were found to be lacerated. In the opinion of the medical officer, cause of death was reported to be shock and haemorrhage as a result of ante-mortem injuries.” 7. During the course of investigation, the police recovered the plain and bloodstained soil, besides one shell of 315 bore, from the spot, wherefor the recovery memo (Ex.Ka.11) was prepared. The weapons used in commission of crime viz. During the course of investigation, the police recovered the plain and bloodstained soil, besides one shell of 315 bore, from the spot, wherefor the recovery memo (Ex.Ka.11) was prepared. The weapons used in commission of crime viz. two firearms of 315 and 12 bore, along with their cartridge cases inside each barrel, were recovered by the police at the instance of the appellants Vipin and Pankaj. Memo of that recovery is Ex.Ka-9. The aforesaid recovered weapons were also sent by the Investigating Officer for the purpose of chemical examination. Report given by Assistant Director, Scientific Laboratory, Agra is available on record as Ex.Ka-15. On culmination of investigation, a chargesheet u/s 302 IPC (Ex.Ka-14) was submitted by the police against all the three appellants. Whereas, for the offence under section 25 Arms Act, separate chargesheet(s) (Ex.Ka-20 and Ka-21) were submitted against the appellant/accused Vipin and Pankaj respectively. 8. On 2.6.2004, learned Sessions Judge, Haridwar, accordingly, framed Charges against the appellants/accused, to which they abjured their guilt and claimed trial. 9. In order to prove its case, the prosecution has examined as many as eleven witnesses, who are PW1 Shiv Kumar (complainant), PW2 Kabool Chand, PW3 Nasir Ahmed, PW4 Mohd. Salim, PW5 Dr. K.K. Karauli (who conducted autopsy), PW6 S.L. Azad, PW7 Brahm Pal Singh, PW8 Yogendra Pal Singh, PW9 Preeti Pal Singh Rautela, PW10 Ramchandra and PW11 Rajendra Kumar Tyagi. 10. After the prosecution evidence, statements of the appellants/accused were recorded under section 313 Cr.P.C. They simply denied their guilt but did not adduce any oral or documentary evidence in defence. 11. Learned Sixth Additional Sessions Judge, Haridwar, vide the judgment and order under challenge, has convicted and sentenced the appellants-accused, as afore-stated. 12. We have heard learned counsel for the parties as well as perused the entire material available on record. 13. In the instant case, the entire prosecution version is based upon the ocular testimony of PW1 Shiv Kumar (informant and deceased’s real uncle) and PW4 Mohd. Salim, a villager. Now, on a meticulous examination of the evidence of these two witnesses, we feel it difficult to believe the same for the following reasons:- A. That PW1 Shiv Kumar, in his cross-examination, states that in order to sell the sugarcane produce, he had accompanied his nephew (victim) on the basis of a ticket issued in his brother’s favour by the concerned Mill. He further testifies that the Mill is situated at a distance of about 1-1¼ kilometers from the place of occurrence. In such a situation, there was hardly any need for the PW1 to accompany his nephew, because the deceased alone himself would have been enough to accomplish the task. More so because ticket to sell the sugarcane of both the brothers was used to be issued separately by the mill. Even if it is assumed that PW1 was accompanying his nephew for his assistance, then his behaviour, after commission of crime, appears to be unacceptable. PW1 admits that when the assailants left the spot after shooting his nephew, he also took to his heels therefrom. The deceased was his real nephew. In such a circumstance, the natural conduct, on the part of a real uncle, would have been to first attend his nephew and to see whether he had been left alive or not, inasmuch as, there was no obstacle or cause of fear in doing so, since, by then, the assailants had already escaped from the spot. B. That PW1, in his examination-in-chief, has stated that he got the first information report reduced into writing at the spot itself by one Sri Arvind Kumar. In this regard, his statement becomes all the more untrustworthy because in the FIR, as also in the statement, he states to have run from the spot immediately after the accused had left the place of incident. In light of such a statement, it transpires that Arvind Kumar too was present there but his presence has nowhere been highlighted. C. That likewise, PW4 Mohd. Salim is another alleged eyewitness, a resident of the same village. According to the eyewitness account of PW4, the deceased was shot fired by the assailants before him. In such a situation, the natural demeanor on his part would have been to go and see whether the victim was left alive or had breathed his last. More so, because he had no reason to afraid of the accused persons, since by then, they had left the spot. But he did not choose to do so. D. That PW4 has further deposed that at the time of incident, he was watering his agricultural field along with his brother Saeed Ahmed, i.e. his brother too was present at that point of time. But he did not choose to do so. D. That PW4 has further deposed that at the time of incident, he was watering his agricultural field along with his brother Saeed Ahmed, i.e. his brother too was present at that point of time. But neither he alone, nor with PW1, nor with his brother Saeed Ahmed, chose to proceed a few steps ahead to attend the victim who was writhing in pains and about to breath his last. E. That PW4 has further testified that as soon as he entered in the village, he heard the people of village discussing about the incident. The fact remains that if he was the first man to enter in the village, then how he came across the villagers talking about it; no reasonable explanation in respect thereof has been put forth. F. That PW1 and PW4 both have deposed that the assailants had appeared on the spot from the field situated in the west of thoroughfare which was leading towards the village. After sudden appearance from the field, appellant Babu Ram, facing towards the waist/buttock of victim, caught hold his mouth. In such a situation, it is difficult to understand how the accused Vipin could fire upon the victim on his buttock. The result would be, that PW4 has not witnessed the incident in actuality. 14. That apart, according to PW5 Dr. K.K. Karoli, a bullet had been removed from the victim’s body which was entrusted to the police. However, we find that the said bullet was not sent to the Forensic Science Laboratory (F.S.L.) along with two country-made pistols, which were allegedly recovered at the instance of accused. We also do not find any explanation, whatsoever, for such a serious lapse. It was obligatory on the part of prosecution to have sent the said bullet for the purpose of expert examination so as to connect it with the crime. In this regard, the Hon’ble Apex Court in the case of ‘State of M.P. Vs. Surpa’ reported in AIR 2001 Supreme Court Page No.2408, has held that if the Investigating Officer has recovered the loaded gun, as also the bullet, removed by the medical officer from the cavity of deceased, then those recovered items ought to have been sent to the ballistic expert for his opinion. 15. Surpa’ reported in AIR 2001 Supreme Court Page No.2408, has held that if the Investigating Officer has recovered the loaded gun, as also the bullet, removed by the medical officer from the cavity of deceased, then those recovered items ought to have been sent to the ballistic expert for his opinion. 15. Apart from above, in the report submitted by the F.S.L., it was found that the cartridge shell of 315 bore could not be matched to have been fired by the recovered country-made pistol. Besides, the recovery memo has not been signed by any independent witness and the accused persons too have specifically denied the recovery. All these facts and circumstances make the above-said recovery doubtful. 16. It was argued on behalf of prosecution that the motto behind this occurrence was the animosity persisting between the two families. A cross-litigation was also ongoing in the court wherein the deceased was a witness against the accused persons. Thus, their motive was to do away with the victim forever, wherein they could get success, with the result, cross-trial, pending against them, resulted in their acquittal. Attention of the Court was also drawn towards a meeting held in the village on 26.03.2003 at 8 P.M. (Ex.Ka-2) in front of village Pradhan’s house, wherein all reputed persons of the village had assembled. The accused persons were called firstly through one Nasir Ahmed and subsequently, through Kabool Chand Gupta, Bablesh Kumar, Mangey Ram and Maam Chand Prajapati. On both occasions, accused persons specifically refused to appear stating to settle the scores at their own. This argument does not have any force for the reason because such refusal, on the part of accused persons, would have been proved only by the above-noted persons. Out of them, Kabool Chand and Naseer Ahmed have been examined as PW2 and PW3 respectively, but they did not utter anything in their evidence either about that assembly or as regards their going to call the accused persons. They are simply the witnesses of inquest report. No other witness has been produced to prove the said factum. This way, the reliance placed by the court below upon Ex.Ka-2, is unwarranted and perverse. 17. Furthermore, it can be visualized that when the accused Babu Ram had caught hold of victim, accused Vipin shot fire upon victim’s buttock which broke his hip bone. No other witness has been produced to prove the said factum. This way, the reliance placed by the court below upon Ex.Ka-2, is unwarranted and perverse. 17. Furthermore, it can be visualized that when the accused Babu Ram had caught hold of victim, accused Vipin shot fire upon victim’s buttock which broke his hip bone. In such state of affairs, it is difficult for us to understand that the victim, by a broken hip bone, could have travelled few paces ahead after getting rid of from the clutches of Babu Ram and subsequently, fell down in the agricultural field of one Janeshwar. 18. In view of the foregoing facts and circumstances of the case, we are unable to sustain the finding of conviction recorded by the court below. Accordingly, we allow both the appeals and set aside the impugned judgment and order of conviction. 19. Appellants Vipin and Pankaj are in jail. Let they be released forthwith if their detention is not required in connection with any other case. 20. Appellant Babu Ram, who is already on bail, need not surrender. His bail bonds are cancelled and sureties are discharged. 21. Let a copy of this judgment along with LCR be sent to the court concerned for compliance.