JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Sri Alok Sharma, learned counsel for the appellants, Sri R.Y. Pandey, learned AGA assisted by Sri Rajeev Ojha, brief holder for the State and perused the record. 2. This criminal appeal challenges the judgment and order dated 21.2.2003 passed by the Additional Sessions Judge, Court No. 3, Shahjahanpur in S.T. No. 247 of 2000, State v. Nanha and another, whereby the appellants have been convicted under Section 302 IPC and 25 Arms Act and sentenced them to life imprisonment under Section 302 IPC and one year’s imprisonment with fine of Rs. 1000/- each under Section 25 of the Arms Act. The trial Court also provided that in case of default in payment of the fine, they would undergo three months’ further imprisonment. All the sentences were ordered to run concurrently. 3. The prosecution case in brief is that a written report dated 13.11.1999 was submitted to the SHO, Police station Roja, district Shahjahanpur, inter alia that complainant Avneesh @ Sakoo, with his brother Rajeev Mishra @ Raku, sons of Braj Bhushan Dayal, resident of Reti, Police station Ram Chandra Mission, Shahjahanpur, and Ajay Bhadoria, resident of Reti, village Niwajpur, were at Awadh Road Lines Transport. A quarrel took place between his brother Rajeev Mishra alias Raku, Nandu son of Jagdish Prasad Gupta and Mashkoor alias Guddu and Nanha, driver and cleaner respectively of Truck No. UP 21/9744, with regard to overtaking of the truck. There was some Marpit between them and Nanha went away threatening Rajeev Mishra alias Raku, (hereinafter referred to as Raku), brother of the complainant. At about 12.30 p.m. when the complainant with his brother Raku and Ajay Bhadoria were coming to the transport office after taking food from hotel and had reached the road going towards village Niwajpur, Nanha and his companion Dilip armed with country made pistols suddenly got down from a Tonga. They chased Raku, who ran towards village Niwajpur in order to save his life but the two accused persons caught him about 20-25 steps away and shot at him. As a result of the injuries Raku fell down there. They chased Raku, who ran towards village Niwajpur in order to save his life but the two accused persons caught him about 20-25 steps away and shot at him. As a result of the injuries Raku fell down there. In the written report the incident is said to have been witnessed by the complainant and other persons, who tried to catch the accused persons but they aimed their Tamancha at them, so due to fear the witnesses could not chase them and the accused persons ran away through the agricultural fields. The complainant then took injured Raku on his truck to the hospital and on reaching there he died. 4. On the basis of the written report, FIR was registered on 13.11.1999 at police station Roja, district Shahjahanpur as case crime No. 209 of 1999 in the G.D. under Section 302 IPC at 14.50 hours. Investigation of the case was taken up by S.O. Himself, who made recovery of blood stained and plain earth and recovery of empty cartridges from the place of incident and prepared recovery memos. Pistol and 315 bore cartridges were also recovered in presence of witnesses at the pointing out of accused Nanha. A 12 bore country made pistol was then recovered on the pointing out of accused Dilip alongwith 12 bore cartridges. The recovered articles were sealed in presence of the witnesses and sent to F.S.L. on 10.12.1999 for examination. Case crime Nos. 212 and 213 of 1999 under Section 25/27, Arms Act were registered against accused Nanha and Dilip respectively, from whom 315 bore cartridges and country made pistol of 12 bore claimed by the accused to have been used in the incident were recovered, regarding which case crime No. 209 of 1999 had been registered. 5. After inquest body of deceased Rajeev Mishra alias Raku was sent for post-mortem examination through constable CP 634 Noor Mohammad and C/746 Ram Kishan of Police station Kotwali, Shahjahanpur. The post-mortem on the cadaver of the deceased was conducted by Dr. Ashok Kumar. on 13.11.1999 at 4.40 p.m. On external examination, the doctor reported that deceased was aged about 32 years. He was of thick muscularity having a stout body, and rigor mortis was developing over the body. The doctor found following ante-mortem injuries on the person of the deceased: 1. Ashok Kumar. on 13.11.1999 at 4.40 p.m. On external examination, the doctor reported that deceased was aged about 32 years. He was of thick muscularity having a stout body, and rigor mortis was developing over the body. The doctor found following ante-mortem injuries on the person of the deceased: 1. Fire-arm wound of entry 3 cm x 1 cm x over right side pectoral region (back of chest), through and through chest cavity. 2. Fire-arm wound of exit 2.5 cm x 2 cm on upper part of chest right side chest cavity deep corresponding to wound No. 1. 3. Fire-arm wound of entry 2.5 cm x 2 cm chest cavity deep on right chest 3 cm medial to nipple right at 3 O’ clock. 4.Multiple fire-arm wounds present around wound in area of 6 cm x 5 cm. Size 0.3 cm x 0.2 cm. No blackening and tattooing present on any wound. 6. The doctor also recovered wadding piece and 43 small metallic pellets from right lung and chest right cavity which contained 1.5 litres of blood in the cavity of heart. Stomach and small intestine contained 150 gms. of semi digested pasty food and fecal matter in long intestine, lever, spleen and pancreas were pale, gal bladder was half full whereas the bladder was empty. In the opinion of the doctor, cause of death was due to shock and haemorrhage as a result of ante-mortem fire-arm injuries. 7. Stomach and small intestine contained 150 gms. of semi digested pasty food and fecal matter in long intestine, lever, spleen and pancreas were pale, gal bladder was half full whereas the bladder was empty. In the opinion of the doctor, cause of death was due to shock and haemorrhage as a result of ante-mortem fire-arm injuries. 7. Report of Forensic Laboratory dated 29.3.2000 regarding the items recovered /exhibits in case crime No. 209 of 1999, under Section 302 IPC, is as follows : ^^izs"kd] la;qDr funs’kd] fof/k foKku iz;ksx’kkyk] 15 rkt jksM] vkxjk&282001 lsok esa] phQ tqfMf’k;y eftLVªsV 'kkgtgkWiqj vkids i= la[;k fnukad esa mfYyf[kr ,d leqfnzr caMy okgd }kjk bl dk;kZy; es fnukad 10-12-99 dks izkIr gq, tks jkT; cuke uUgksa vkfn vijk/k la[;k 209@99 fnukad Fkkuk jkstk /kkjk 302 ls lEcfU/kr Fks vkSj ftuds Hksts tkus ds lEcUèk esa ofj"B fpfdRlk v/kh{kd ftyk fpfdRlky; us vius i= la[;k fnukad }kjk lwfpr fd;k FkkA iklZy ,oa lhy dk fooj.k%&eq[; U;kf;d vf/kdkjh 'kkgtgkaiqj 'kkgtgkaiqj ----- uewukuqlkj izn’kZ 1- isaV % ,d loZeksgj caMy esa e`rd jktho feJk 2- 'kVZ % 3- cfu;ku % 4- v.Mj fo;j % 5- dykck % 6- diM+k dk rkcht % 7- dkyk /kkxk 8- feV~Vh [kwukywnk % nks loZeksgj caMy esaA feV~Vh lknk 9- fVDyh NjsZ % loZeksgj fyQkQk esa uksV& vxzs"k.k i= esa dze la0 4] 6 o 7 ij of.kZr izn’kZ o mudh fjiksVZ vyx ls vkXus;kL= vuqHkkx }kjk izsf"kr fd;s tk;sxsA fjiksVZ oLrq ¼8½ iw.kZr;k jDr vkpwf"kr Fkh oLrq ¼1½ ls ¼7½ o ¼9½ ds cM+s Hkkxksa ij jDr ds /kCcs ik;s x;sA oLrq ¼3½ o ¼4½ ij lcls cMs /kCcs dh yEckbZ dze’k% yxHkx 35 o 50 lseh- FkhA jDr ds fy;s LisDVªeh; ijh{k.k iz;ksx esa yk;k x;kA oLrq ¼8½ dh [kwukywnk feV~Vh iw.kZr;k jDr vkpwf"kr gksus ds dkj.k bldh rRlacf/kr lknk feV~Vh ls djuk lEHko u gks ldkA oLrq ¼1½ ls ¼9½ ij ekuo jDr ik;k x;kA oLrq ¼1½ ls ¼4½ ij jDr ds /kCcs ^,^ oxZ ds ik;s x;sA oLrq ¼5½ ls ¼9½ ij jDr ds /kCcksa ds oxgZdj.k ds fy;s fd;s x;s ijh{k.k ls dksbZ fuf’pr ifj.kke u fudy ldkA g0 viBuh; 15-3-2003 oSKkfud vf/kdkjh^^ 8. Report of Forensic Laboratory dated 31.1.2001 in respect of crime No. 207,213 and 213 of 1999 under Section 302 IPC with Section 25, Arms Act, was sent by the Joint Director to the Chief Judicial Magistrate, Shahjahanpur in respect of recovered cartridges and country made pistols 315 bore and 12 bore used in the incident which shows that they match with cartridge used by the guns in the commission of the offence. It reads thus : ^^fujh{k.k% mijksDr 12 cksj ns’kh fiLrkSy fpfUgr 2@2000 }kjk 12 ds rhu dkjrwl rFkk 315 cksj ns’kh fiLrkSy fpfUgr 1@2000 }kjk 315 cksj ds nks dkjrwl iz;ksx’kkyk esa ijh{kkFkZ pyk;s 2@2000 }kjk pyk;s dkjrwlksa dks Vhlh 1 ls Vhlh 3 rd ls rFkk 1@2000 }kjk pyk;s djrwlksa dks Vhlh&4 ls Vhlh&5 ls fpfUgr fd;k x;kA fookfnr ,oa ijh{kkFkZ dkjrlksa ij mifLFkr fpUgksa dk fujh{k.k gS.M eSXukdk;j ,oa lw{en’khZ ;U= }kjk fd;k x;kA fookfnr dkjrwl bZlh&1 ij dk;fjax fiu] czhp ,oa pSEcj ds fpUg mifLFkr gSA bZlh&2 dh Vksih QVh gS rFkk bl ij czhp] ,Dl ------------ ,oa pSEcj ds fpUg mifLFkr gSA ijh{kkFkZ dkjrwlksa Vhlh&1 ls Vhlh&3 rd dh Vksfi;k ¼vLi"V½ rFkk bu ij czhp] ,DlVsDVj ,oa psEcj ds fpag mifLFkr gSA ¼vLi"V½ Vhlh&5 ij Qk;fjax fiu] czhp ,oa pSEcj ds fpUg mifLFkr gSA dkj.k% fookfnr ,oa ijh{kkFkZ dkjrwlksa ij mifLFkr fpUgksa dk feyku rqyukRed lw{en’khZ ;U= }kjk fd;k x;kA fookfnr dkjrwl bZlh&1 ij mifLFkr Qk;fjax fiu czhp ,oa pSEcj ds fpUg viuh O;fDrxr fo’ks"krkvksa esa ijh{kkkFkZ dkjrwlksa Vhlh&4 o Vhlh&5 ij mifLFkr Qk;fjax fiu] czhp ,oa pSEcj ds fpUgksa ds leku gSA fookfnr dkjrwl bZlh&2 ij mifLFkr czhp ,DlVSDVj ,oa pSEcj ds fpUg vius ----- O;fDrxr fo’ks"krkvksa esa ijh{kkFkZ dkjrwlksa Vhlh&1 Vhlh&3 rd ij mifLFkr czhp] ,DlVsDVj ,oa pSEcj ds fpUgksa ds leku gSA ifj.kke%& 1 fookfnr dkjrwl bZlh 1 mijksDr] 315 cksj ns’kh fiLrkSy fpfUgr 1@2000 }kjk pyk;k x;k gSA 2- fookfnr dkjrwl bZlh&2 mijksDr 12 cksj ns’kh fiLrkSy fpfUgr 2@2000 }kjk pyk;k x;k gSA uksV& 1- mijksDr ifj.kke ewy izn’kksZa ds ekbdzksLdksfid fujh{k.k ------- vk/kkfjr gS fp= izn’kZu gsrq rS;kj fd;s x;s gSA 2- d`i;k izn’kZ okilh dk izcU/k 'kh?kz djsaA g0 viBuh; jkek=; ik.Ms; lgk;d funs’kd 9. In the meantime after completion of investigation, charge-sheet was submitted against the accused appellants and the case was committed to the Court of Session, where it was registered as S.T. No. 247 of 2000, State v. Nanha and another. In the meantime after completion of investigation, charge-sheet was submitted against the accused appellants and the case was committed to the Court of Session, where it was registered as S.T. No. 247 of 2000, State v. Nanha and another. Charges were framed against the appellants on 27.3.2000 under Section 302 IPC read with Section 34 IPC. They denied the charges and claimed to be tried. 10. The prosecution produced seven witnesses in support of its case, namely P.W.1 Avanish, P.W. 2 Dr. Ashok Kumar, P.W. 3 Ajay Kumar Singh, P.W. 4 Madan Pal Singh, P.W. 5 Jitendranath Singh, P.W. 6 Dharampal Singh and P.W. 7 R.P. Yadav, whereas accused Nanha and Dilip were examined under Section 313, Cr.P.C., who denied the charges saying that they were falsely implicated in the case and witnesses for prosecution are under influence of one Jagdish Prasad with whom Naha stated to be inimical. 11. The complainant Avanish P.W. 1 in his oral evidence reiterated the facts mentioned in F.I.R. saying that the accused appellants murdered his brother Rajeev alias Raku by firing of the fire-arms in their hands and narrated the manner in which the incident had taken place said to have been seen by a number of persons there. P.W. 2 to P.W. 7 except P.W.3 are formal witnesses and not of fact. P.W. 2 Dr. Ashok Kumar who had conducted the post-mortem of the deceased Rajeev alias Raku, proved the Post-mortem report and handing over of the clothes found on the body of the deceased as well as pellets, wadding and other items recovered from inside his cadaver to the police constables in sealed packets for examination at Forensic Laboratory. P.W.3 Ajay Kumar Singh son of Anand Kumar who is truck driver by profession and was residing in Mohalla Reti, Shahjahanpur, stated that he knows the accused appellants. 12. H.C. Madan Pal Singh P.W 4 deposed about registeration of case crime No. 209 of 1999 on 13.11.1999 on the basis of the written report. S.O. Jitendranath Singh P.W. 5 gave details of the investigation as well as of recoveries. While S.I. Dharampal Singh P.W.6 deposed regarding preparation of inquest and proved exhibits Ka-13 to Ka-17. He was not cross-examined by the accused persons. However, Retired S.I. R.P. Yadav P.W. 7 deposed the manner in which arrest of the two accused was made and preparation of site plan. 13. While S.I. Dharampal Singh P.W.6 deposed regarding preparation of inquest and proved exhibits Ka-13 to Ka-17. He was not cross-examined by the accused persons. However, Retired S.I. R.P. Yadav P.W. 7 deposed the manner in which arrest of the two accused was made and preparation of site plan. 13. The Trial Court after considering the facts and circumstances of the case and evidence on record, after hearing the parties, passed the impugned judgment and order dated 21.2.2003 convicting and sentencing the accused Naha and Dilip as stated above. 14. The contention of the learned counsel for the appellant is that : 1.Nanha was aged about 15 years at the time of incident, hence a juvenile, 2. motive is weak, 3. F.I.R. of the incident is delayed, hence doubtful, and 4. there are contradiction in deposition of the eye-witnesses which proves the prosecution story as improbable and in fact the accused were falsely implicated. 15. Per Contra, Sri Rajeev Ojha, brief holder appearing with Sri R.Y. Pandey, A.G.A., submits that alleged contradictions in the statement of the eye-witnesses are so irrelevant that they cannot be fatal to the case of the prosecution. According to him, P.W.1 Avanish has given detailed ocular version of the circumstances of before and after the incident as well as the manner in which Raku was killed by the accused and that this witness has stood the test of cross-examination without any wavering in his testimony. It is also submitted that the postmortem report corroborates the manner of incident. The pellets and wadding have been found in the cadaver of the deceased as he had been fired upon by the accused from 4-6 steps and that the evidence show details of the recovery as well as the manner in which it was made at the pointing out of the accused persons, only who knew the place of the hiding of the fire-arms used in the incident. 16. Upon hearing the counsel for the parties and on perusal of record and the case laws, we would like to take up the matter of juvenility first. AS TO WHETHER NANHA WAS A JUVENILE ? Appellant Nanha has disclosed his age as 20 years on 21.6.2002 at the time of his examination under Section 313, Cr.P.C. The incident had taken place on 13.11.1999. AS TO WHETHER NANHA WAS A JUVENILE ? Appellant Nanha has disclosed his age as 20 years on 21.6.2002 at the time of his examination under Section 313, Cr.P.C. The incident had taken place on 13.11.1999. There is neither any basis for providing the age as 20 years by Nanha in his deposition aforesaid nor any plea in regard to juvenility appears to have been taken by him in the Court below. The Apex Court has firmly laid down that plea of juvenility can be taken by the accused at any stage. However, in Criminal Appeal No. 22 of 1982, Raghuraj Singh (now dead) and others v. State of U.P. and others, 2013 (8) ACC 256, this Court held that claim to juvenility must be on some basis as burden to prove that appellant was juvenile in conflict with law is upon the person claiming juvenility. From the above facts and law, it appears that the plea of juvenility can be raised at any time but must be considered on some rational basis. The basis for consideration the question of age for the purpose is provided in Juvenile Justice (Care and Protection of Children) Act, 2000. The Court in Raghuraj Singh’s case (supra), considering Section 7-A of the aforesaid Act, held as follows : “2.......No evidence in support of application has been given by the appellant. The application has been moved after 28 years of presenting the appeal by the appellant. Merely because on the basis of affidavit wherein neither any documentary proof of age nor age assessed on the basis of medical examination has been brought on record, burden to prove that appellant was juvenile in conflict with law in view of provisions contained in Juvenile Justice (Care and Protection of Children) Act, 2000, is on the appellant in which he failed. 3. Therefore, we are of the firm opinion that this application has been moved only to delay the proceeding of appeal.” Rule 12 of the Rules framed under the aforesaid Act also provide guidelines/basis/documents which can be taken into consideration for determination of question of juvenility. However, in the instant case there is neither any application under Section 7 of the Act moved by the appellant nor any documentary proof of age. However, in the instant case there is neither any application under Section 7 of the Act moved by the appellant nor any documentary proof of age. Even no medical examination of appellant Nanha has been brought on record nor any affidavit has been filed claiming juvenility, hence the argument of the learned counsel for the appellant at the fag end stating that accused Naha was a juvenile on the basis of his particulars given in his deposition, cannot be accepted to be incorrigible proof of his age for the purpose of determination of juvenility. It is accordingly held that Nanha was not a juvenile at the time of committing the offence. MOTIVE: WHETHER WEAK? We now proceed to determine the strength of motive. Learned counsel for the appellant has laid emphasis on the fact that the motive disclosed from the evidence is weak which is repelled by learned A.G.A. who submits that offence had been committed by accused Nanha and Dilip in broad day light at about 12.30 p.m. The incident has been narrated by P.W.1 Avanish, brother of deceased Raku. Both the accused appellants had fired with 315 bore and 12 bore country made pistols respectively. It has come in the evidence that a quarrel had taken place earlier between Nanha and Raku and accused Nanha had gone away threatening Raku (since deceased) when accused persons were having food in the hotel and on seeing Rajeev alias Raku to fulfill their intention, had exhorted to kill him, chased him and had also fired upon him. It is apparent that accused persons on seeing deceased Raku going back with his brother, abusing & exhorting got down from Tonga and shot him. After shooting Rajeev alias Raku, the brother of the complainant, they ran away through the agricultural fields. Injured Raku was immediately taken to the hospital but before he could be admitted there, he died. It is stated that eye-witnesses to the incident, are P.W. 1 Avanish-brother of the deceased and P.W. 3 Ajay Kumar Singh, who was having food with the deceased. This witness also knew Nanha and Dilip whom he had seen firing upon Raku who fell down due to fire-arm injuries and died on reaching the hospital. Here motive looses its significance as there are eye-witnesses to the killing of Raku by the accused appellants. This witness also knew Nanha and Dilip whom he had seen firing upon Raku who fell down due to fire-arm injuries and died on reaching the hospital. Here motive looses its significance as there are eye-witnesses to the killing of Raku by the accused appellants. It is settled law that where ocular witnesses of the incident are available, motive pales into insignificance. Therefore, argument that motive was weak is not helpful to the appellants as ocular witnesses have proved the manner of the incident and role of each of the two accused - Nanha and Dilip in detail and accused can be convicted on basis of the ocular evidence. F. I. R.: WHETHER DOUBTFUL ? The next question as argued before the Court is as to whether FIR is delayed, hence doubtful ? We find from the evidence on record that incident had taken place at about 12.30 p.m. After Raku was shot down by Nanha and Dilip, he was taken to the hospital where he remained alive for about half an hour and before he could be admitted and any medico legal could be done, he died. The written report was scribed by Raj Mohan Mishra on the dictation of Avanish in the hospital and then the same was submitted in the police station where it was registered at case crime No. 209 of 1999 at 14.50 hours on 13.11.1999. The time to arrange for taking injured Raku to the hospital, and then transcribing the written report, does not leave much time for lodging of FIR at 14.50 hours, shows that it was promptly lodged. The trial Court has also scrutinised this aspect of the matter and has come to the same conclusion as by us that there is no delay in lodging of the FIR which is prompt in the facts and circumstances of the case, hence the question of its being doubtful on this ground cannot be sustained. CONTRADICTIONS: The last submission of learned counsel for the appellant is that there are contradictions in the statement of the witnesses P.W. 1 and P.W.3. CONTRADICTIONS: The last submission of learned counsel for the appellant is that there are contradictions in the statement of the witnesses P.W. 1 and P.W.3. In this regard he placed reliance upon the statement of P.W. 1 and P.W. 3 who stated that when Raku was going towards Avadh Transport after taking meal, the accused persons got down from Tonga, abusing and exhorting chased his brother, who ran towards village Niwajpur but the appellants caught him and fired at him with the firearms in their hands. Whereas P.W. 3 stated that Dilip and Nanha armed with the pistols met him in the way; that both of the assailants ran towards Raku who ran away and when he could not be caught, Dilip and Nanha fired upon Raku with their pistols; that Raku fell down due to firearm injury and that this witness had seen the incident as well as other persons had also seen it. The contradiction emphasised in the aforesaid statement of P.W. 1 and P.W. 3 by the learned counsel for the appellant is that according to P.W. 1, the accused are said to have got down from Tonga, chased and killed Raku whereas P.W. 3 stated that Raku was chased and fired upon by the accused appellants, he fell down due to injuries and succumbed to them in the hospital andthere is no mention of Tonga in his statement. Crux of the matter is that there is no material contradiction in the statement of P.W. 1 of getting down from Tonga, chasing and firing upon Raku as well as the version of P.W. 3- the other ocular witness, that Raku was chased by the accused appellants in broad day light, they were abusing and exhorting to kill him and when Raku fell down due to the injuries caused by the accused person by their fire-arms, he was caught and fired upon from close range. 17. Both ocular witnesses have stood firm in their cross-examination with regard to the identity of the accused, time, place and manner of assault. It is also evident by the recovery of 43 pellets and one wadding from the cadaver of the deceased. It appears that a small quarrel had taken place between accused Nanha and deceased Raku for moving the truck. The incident tallies with the injuries received by the deceased in the postmortem report. It is also evident by the recovery of 43 pellets and one wadding from the cadaver of the deceased. It appears that a small quarrel had taken place between accused Nanha and deceased Raku for moving the truck. The incident tallies with the injuries received by the deceased in the postmortem report. Since the accused were known from before the Court below appears to have rightly inferred that there is no question of any misidentification by the eye-witnesses. Not only the post-mortem report supports the statements of these two witnesses P.W. 1 and 3 but F.I.R. also has been lodged promptly erasing any doubt of manipulation in it. The contradictions pointed out by the learned counsel for appellant, are not material or fatal to the prosecution case. 18. Accused Nanha has also been convicted by the trial Court for the offence punishable under Section 25, Arms Act as on 16.11.1999 after interrogation alongwith co accused Dilip, he got a country made pistol 315 bore and one cartridges 315 bore recovered to the police at about 4 p.m. The joint recovery memo for this recovery was prepared by S.O. Jitendranath Singh P.W. 5. On the basis of this recovery memo, cases under Section 25/27, Arms Act were separately registered against accused Nanha and Dilip being crime Nos. 212 of 1999 and 213 of 1999 respectively at 5.50 P.M. on 16.11.1999. Learned counsel for the appellant has criticized this recovery on the ground that police has not all of sudden arrested the accused and recovered the illicit arms and ammunitions from their possession or at their pointing out but the case of the prosecution is that on interrogation both the accused allegedly confessed their guilt and offered to get weapons used in the crime recovered. He further submitted that there was ample time for the police to procure public witnesses to lend credence to the alleged recovery. 19. A perusal of the recovery memo shows that the police tried to procure public witnesses but nobody came forward on account of terror and fear of the accused persons. It is important to note that place of the alleged recovery is situated in the vicinity of village Hathaura Bujurg and none of the accused are resident of that village, so there was no occasion for the people of the vicinity to have known to the accused from before. It is important to note that place of the alleged recovery is situated in the vicinity of village Hathaura Bujurg and none of the accused are resident of that village, so there was no occasion for the people of the vicinity to have known to the accused from before. Thus, non procurement of the public witness for the alleged recovery, creates a doubt about the veracity of the prosecution on this score. 20. As per the recovery memo, the alleged recovery of illicit arm and ammunition was made by the accused persons in presence of S.O. Jitendranath Soingh, Head Constable Madan Pal Singh, Constable Sheir Singh, Constable Babu Ram and Constable Nirdesh Kumar. Out of these witnesses, the prosecution has examined H.C. Madan Pal Singh P.W.4 and S.O. Jitendranath Singh P.W. 5. it is important to note that H.C. Madan Pal Singh P.W. 4 has not stated a single word about the aforesaid recovery at the instance of accused Nanha in his examination in chief. He has simply proved the check report pertaining to case crime No. 209 of 1999 under Section 302 IPC and copy of the G.D. regarding registration of the case on 13.11.1999. S.O. Jitendranath Singh P.W. 5 in his examination in chief recorded on 18.8.2001 has simply stated that at the instance of both the accused he recovered the weapons of offence i. e. country made pistols, prepared recovery memo which is before him. It is in his handwriting and bears his signatures which has been proved as exhibit Ka-8. He has not stated anything about disclosure statement of the accused persons relating to the aforesaid recovery. He has also not stated the date, time, place and manner of the aforesaid recovery. On 5.12.2001 after cross-examination, this witness was reexamined and in his reexamination too, he has not stated important details about the aforesaid recovery. In his cross-examination, he has stated that this recovery might have place place at 3.30 p.m. and they did not call any public witness. This statement of P.W.5 is in total contradiction of these facts mentioned in the recovery memo because the time of recovery is 4 p.m. and it has been stated in the memo that police tried to procure public witness too but due to terror and fear of the accused persons no one came forward to witness the recovery. This statement of P.W.5 is in total contradiction of these facts mentioned in the recovery memo because the time of recovery is 4 p.m. and it has been stated in the memo that police tried to procure public witness too but due to terror and fear of the accused persons no one came forward to witness the recovery. Thus, we find that the prosecution has miserably failed to prove alleged recovery of country made pistol 315 bore and one live cartridges 315 bore at the instance of accused Nanha. It appears that in order to create evidence in support of the charge of murder, the police has fabricated this recovery. It is also pertinent to note here that the recovery is joint and single recovery memo was prepared which too is not legal. In these circumstances, we find that the trial Court has erred in convicting and sentencing accused Nanha for the offence punishable under Section 25, Arms Act. He is liable to be acquitted on this count. 21. It may also be pointed out at this stage that Dilip, one of the accused persons is reported to have died during pendency of this appeal, so it stood abated vide order dated 9.1.2013. 22. For all the reasons stated above, we are of the considered view that the trial Court has rightly recorded conviction of accused Nanha for the offence punishable under Section 302 IPC and appropriate sentence has been passed against him. However, charge for the offence punishable under Section 25, Arms Act, has not been proved beyond reasonable doubt so accused Nanha is liable to be acquitted. 23. Accordingly, the appeal is partly allowed. Conviction and sentence of accused Nanha for the offence punishable under Section 302 IPC is hereby confirmed. However, he is acquitted of the offence punishable under Section 25, Arms Act. Accused Nanha is on bail. His bail is cancelled. He be taken into custody immediately to serve out the sentence imposed against him by the trial Court and confirmed by us for the offence punishable under Section 302 IPC. Let a certified copy of this judgment be sent to the trial Court for its immediate compliance which should be reported to this Court within two months. —————