JUDGMENT 1. - This appeal has been filed by accused-appellant Shiv Singh @ Sidhnath Singh against the judgment dated 18.7.2007 passed by Addl. Sessions Judge (Fast Track) No.l, Pali Head quarter Jaitaran, District Pali in Session Case No. 32/2005 whereby the accused-appellant was convicted and sentenced as follows:- (1) Section 302 I.P.C. : Life imprisonment and a fine of Rs. 500/-, and in default of payment of fine, six months simple imprisonment (2) Section 3/25 Arms Act : One year's simple imprisonment and a fine of Rs. 500/- and in default of payment of fine, three months' simple imprisonment. Both the sentences were ordered to run concurrently. 2. The facts in brief as narrated in F.I.R. may be summarised as follows; On 24.9.2004 at 6.30 A.M., the complainant Kishan Singh had sent a telephonic f message to Police Station, Kalu, District Pali regarding murder of Mangu Singh in village Tibri. On receiving above information, the police reached on the spot and the complainant Kishan Singh gave the report about the incident in writing in which it was mentioned that Mangu Singh was sleeping on a bed in front of his I house and in the mid-night, the informant heard sound of two gun fires and then he came to the spot and found injured Mangu Singh lying beneath his cot. He also says that Shiv Singh, who was standing there, started running from the spot having a gun in his hand. He tried to chase Shiv Singh but due to darkness, he could not catch him and then after other villagers reached the spot on his call and then in the morning at 6.30 A.M. he sent the telephonic message to Police Station, Kalu. 3. The Trial Court has found the accused-appellant guilty of Section 302 of Indian Penal Code as well as under Section 3/25 of the Arms Act, 1959. 4. In the appeal, it has been argued by the appellant's Counsel that the order of the Trial Court is without appreciation of facts and law and it should be quashed. It has also been argued that no one had seen the accused-appellant killing Mangu Singh. It has also been argued that the F.I.R. lodger Kishan Singh also did not see accused-appellant Shiv Singh in the act of killing Mangu Singh. It has further been argued that no motive has been alleged against the accused-appellant for committing murder. It has also been argued that no one had seen the accused-appellant killing Mangu Singh. It has also been argued that the F.I.R. lodger Kishan Singh also did not see accused-appellant Shiv Singh in the act of killing Mangu Singh. It has further been argued that no motive has been alleged against the accused-appellant for committing murder. It has been argued that Kishan Singh says that the incident occurred in the mid-night at 12.00 P.M. while other witnesses say that it occurred at about 3.00 A.M. in the morning. It has also been argued that there was considerable delay in lodging the F.I.R. and in the first message which j was sent to the police, name of the accused-appellant does not appear, though Kishan Singh was knowing the accused-appellant well before the incident being his close relative. It has been argued that the police had sent the F.I.R. to the concerned Magistrate only after receiving the post-mortem report which creates doubt upon the reliability of F.I.R. It has also been argued that it was not possible for Kishan Singh (PW-1) to see the appellant running from the place of the incident because on the date of incident, the moon set at 12.55 A.M. at Jaitaran as stated by Harish Chandra (DW-1) who had exhibited panchang (Ex.D-10) also in this regard. It has also been argued that there are so many contradictions in the statement of Kishan Singh and he is not a reliable witness and recovery of gun from him is also doubtful and so it has been prayed that the accused-appellant should be acquitted from both the charges because the prosecution [ story is doubtful on so many counts. 5. We have heard the detailed arguments of the learned Counsel for the appellant as well as of the learned Public Prosecutor for the State. We have perused the judgment of the Trial Court and we have also perused the record of the case. 6. In this case, Ex.D-1 is most important document which is copy of the Rojnamcha Register which is dated 24.9.2004 recorded at 6.30 A.M. which reads as under:-VARNACULAR MATTER OMMITED 7. The name of the murderer has not been disclosed in this information by the author of the information, though he was well conversant with the alleged killer Shiv Singh being his cousin. The name of the murderer has not been disclosed in this information by the author of the information, though he was well conversant with the alleged killer Shiv Singh being his cousin. The incident allegedly occurred at 12.00 in the mid-night, but even by 6.30 A.M. if the name of the assailant was not known to the author of the said report Ex.D-1, then it can be said that it is only on the basis of suspicion or because of some ulterior motive, the accused-appellant was implicated by the complainant Kishan Singh, because admittedly Kishan Singh and Shiv Singh both are distant cousins of deceased Mangu Singh and it is quite possible that Kishan Singh may be interested to oust Mangu Singh from the right of inheritance in some ancestral property. 8. Ex.D-2 is supplementary statement of Kishan Singh recorded under Section 161 of Code of Criminal Procedure and in this statement he says that actually there was no previous animosity between Shiv Singh and Mangu Singh (since deceased) and the story of previous enmity between the two as narrated by him in his previous statement under Section 161 of Code of Criminal Procedure, viz., Ex.D-3 was false. Then we come to know from Ex.D-1 that in the mid-night on 23.9.2004, he had seen Shiv Singh running form the place where Mangu Singh was lying in badly injured condition by two shot of gun fire. 9. In comparison Ex.D-3 if we peruse the Court statement of PW-1 Kishan Singh, then we come to know that there he states that he had seen Shiv Singh standing with a gun in his hand near the injured Mangu Singh and then Shiv Singh ran away. It seems surprising that after killing a person by two gun shots, the killer will stand there in mid-night to wait for any person to come and see him and then he will run away. Kishan Singh was knowing Shiv Singh before the incident also but still he did not name the accused Shiv Singh in the report Ex.D-1 which was lodged with the police. Even in telephonic message, at least he could have said that "Shiv Singh has killed Mangu Singh, so you immediately rush to the spot because he has run away along with a gun in his hand" 10. Even in telephonic message, at least he could have said that "Shiv Singh has killed Mangu Singh, so you immediately rush to the spot because he has run away along with a gun in his hand" 10. Four doctors had been examined in this case, two by the prosecution and two by the defence. The Post-mortem Report (Ex.P-16) and X-ray Reports Ex.P-17 and Ex.P-18 have been exhibited in this case. 11. PW-9 Dr. B.L Patel confirms that Mangu Singh was killed by gun-shots. He was a member of the Medical Board and had conducted the post-mortem of dead-body of Mangu Singh. He states that in the opinion of the Medical Board, Mangu Singh died due to shock caused due to extreme bleeding because of gun shot. He says that Dr. Premsukh Prajapat and Dr. Praveen Punamia were also members of the Medical Board, which had conducted the post-mortem. He admits that the Medical Board did not bother to examine the holes if any, found in the clothes, though the clothes of the dead body were removed in his presence. He states that twenty to twenty five pellets were visible in X-ray plate in the chest and stomach of the deceased on left side. He further states that two lacerated wounds each of the size of 5 inches x 4 inches, first on ribs and second on abdomen were there. He admits that the Medical Board did not write in the post-mortem report that how many pellets were recovered from the dead body of Mangu Singh. During cross-examination he admits that ten pellets were visible in X-ray plate Ex.P-17 and seventy pellets were visible in X-ray plate Ex.P-18. Dr. Patel was not able to explain satisfactorily in his statement that why the X-ray plates are shown more than eighty pellets in the body of the deceased while the Medical Board has given its number as only twenty or twenty five. He further states that about twenty or twenty five pellets were recovered from the dead body of Mangu Singh but he has not been able to explain that why only two pellets were handed over to the police for examination by FSL. 12. PW-11 Dr. Praveen Punamiya was also examined by the prosecution. He was also a member of the Medical Board conducting the post-mortem of Mangu Singh. 12. PW-11 Dr. Praveen Punamiya was also examined by the prosecution. He was also a member of the Medical Board conducting the post-mortem of Mangu Singh. He also states that twenty or twenty five pellets had been found in the body of the deceased which were seized by the Medical Board. Exact number of pellets could not be given by this witness also. This witness also has not explained in his statement that when twenty or twenty five pellets wee recovered from the dead body, then why only two pellets were sent to the FSL by the police and where are the remaining pellets, the witness is not able to explain. 13. Dr. S.R. Choudhary was examined by the defence in this case as DW-2 and he emphatically states before the Court that lacerated wounds are never caused by gun shot and gun shot pellets could have caused only the punctured wounds while Ex.P-16, the post mortem report nowhere mentions that there was any punctured wound on the body of the deceased. 14. Dr. Tej Singh was also examined by the defence in this case as DW-5. This witness also states that in Ex.P-16, the Medical Board has not mentioned the other symptoms of gun shot wounds, like burning, charring or tattooing etc. He also states that if a person killed by gun shot fire, then the clothes which he was wearing must be containing some holes and generally the part of the cloth from where the pellet enters the body, also enters the wound, but no such symptom has been mentioned in Ex.P-16. 15. If we go though the statements of PW-6 Bhag Chand, PW-8 Bhanwar Lal, PW-10 Moti Lal and PW-14 Chaturbhuj Singh, then we come to know that the seized articles were handed over to the police in sealed packets and the sealed articles were sent to the FSL and the seals of the seized articles were not | manipulated during the transit. It means that if twenty or twenty five gun shot pellets were recovered from the body of the deceased then all the pellets must have been sent to the FSL but the FSL Report (Ex.P-30) clearly mentions that only two gun shot pellets were sent to the FSL in Packet-'E' in sealed condition and the packet was found packet was found packed properly with seal impression which tallied with the specimen seal impression forwarded to it but none of the gun shot pellets was containing any stains of human blood. 16. Thus it can be said that there was manipulation in the gun shot pellets seized by the doctors who had conducted the post-mortem of deceased Mangu Singh and the gun shot pellets which were seized and sealed by the police and sent to the FSL for examination. 17. PW-12 Pramod Kumar, the then S.H.O. of Police Station, Kalu has also stated on oath that only two gun shot pellets had been handed over to him by the Medical Board and the same were sent to the FSL in 'seal intact' condition. 18. Thus, in this case, the prosecution story is doubtful regarding the seizure of gun shot pellets. Further more, the seizure of gun is also doubtful in this case. Pramod Kumar (PW-12) admits in his cross-examination that 'twelve bore' gun and M.L. gun are two different types of guns. He admits that 'twelve bore' gun was recovered in this case at the instance of accused-appellant Shiv Singh, though in prosecution sanction (Ex.P-32) there is a reference only of M.L. Gun and not of 'twelve bore' gun. He is not able to give any explanation about the fact that why the gun shot pellets recovered from the body of the deceased were not having any blood stains. He also denies that the gun was recovered from the spot and he states that the gun was recovered next day only at the instance of the accused. He testifies that the seizure memo of 'twelve bore' gun is Ex.P-8 which was prepared by him on 25.9.2004 and the said gun was recovered at the instance of the accused in furtherance of the information given by him. He testifies that the seizure memo of 'twelve bore' gun is Ex.P-8 which was prepared by him on 25.9.2004 and the said gun was recovered at the instance of the accused in furtherance of the information given by him. There is defect in the prosecution sanction and in this, it has been mentioned that the police had recovered one M.L gun on 24.9.2014 from the accused-appellant and so the prosecution sanction is hereby given under Section 25 of the Arms Act, 1959. The prosecution sanction is defective for two reasons, first, that the make of gun recovered is wrongly mentioned in it and secondly, omnibus sanction under Section 3/25 of the Arms Act, 1959 was given i the relevant sub-section of Section 25 of the Arms Act has not been mentioned in it, so the accused deserves to be given the benefit of doubt on this writ also regarding the charge under Section 3/25 of the Arms Act, 1959. 19. In this case, star witness of the prosecution is Kishan Singh (PW-1) but he is not a reliable witness. He states that he had informed the police on telephone that Shiv Singh had murdered Manu Singh but still the name of Shiv Singh does not appear in the telephonic message recorded in the Rojnamacha. This means even upto 6.30 A.M. (Ex.D-1), it was not known that who had committed murder Mangu Singh. A suggestion has been given to PW-1 Kishan Singh in his cross-examination and he admits that about sixteen or seventeen bighas of land was left by Mangu Singh. He says that it is wrong that after death of Mangu Singh, his &id has been captured by him. He says that Mangu Singh was killed by accused-appellant because of greed of land, but he admits that in F.I.R. (Ex.P-1) he did not mention the said motive behind the murder. He refuses to have given supplementary police statement police statement (Ex.D-2) also. He admits that VF.l.R. (Ex.P-1) he did not mention that soon after the murder, the accused-appellant had run away with gun in his hands. 20. PW-2 Shrawan Singh has stated that he had reached the spot soon after the death of Mangu Singh. He says that Mangu Singh had died by gun shot injury. He further states that no bullet or empty cartridges or pellets etc. were recovered from the spot. 20. PW-2 Shrawan Singh has stated that he had reached the spot soon after the death of Mangu Singh. He says that Mangu Singh had died by gun shot injury. He further states that no bullet or empty cartridges or pellets etc. were recovered from the spot. PW-3 Prem Singh also states that Mangu Singh had died because of gun shot injuries. He says that gun was recovered from the accused-appellant on the next date of the incident. He says that it was a double barreled gun. He further states that two empty cartridges were also recovered from the barrels of the gun. 21. PW-12 Jai Singh also states that he had reached the spot soon after the incident. He supports the prosecution story that Mangu Singh had been killed by fun shot injuries. He states that Mangu Singh was un-married and his sister Daku fenwar is also married at Chauhan Nagar and Mangu Singh had left fifteen Bighas of land which is now in possession of his sister. He says that he was woken up in the night on hearing hue and cry of Kishan Singh who was shouting that Shiv Singh is killed by Mangu Singh. He states that he did not see Shiv Singh on the spot but he had heard the sound of two gun shot fires. He says that within no time, about forty to fifty villagers had gathered on the spot. He admits that in 'Tibri village, five or seven persons are having telephones but he is unable :o explain that why soon after the incident in the night, the police was not informed telephonically. He tries to explain that he did not think it fit to ask anybody in the mid-night to open the house and allow him to make a telephone call. Ibis conduct of the witness is unnatural because when a person has been murdered in the mid-night and the assailant was identified on the spot, was able to escape with a loaded gun, then the reasonable and probable course of conduct would have been that any of the neighbours could have been given a trouble to make an immediate telephone call to the police and then the villagers who were sixty or seventy in numbers could have followed the accused and captured him. There were number of motor cycles, jeeps and tractors in the village as per the statement of PW-14 Jai Singh, but still no body has bothered to go to the Police Station on some vehicle in the mid-night itself, though the Police Nation was hardly six to seven kilometers away from the place of occurrence. 22. PW-5 Girdhari Singh is a witness of recovery of gun at the instance accused-appellant from his house on the next day. PW-7 Kundan Singh is also a witness who had reached the spot on being called by Kishan Singh. He states that he heard sound of two gun shot fires. 23. PW-13 Pramod Kumar, the S.H.O of Police Station Anandpur, Kalu admits that residence of the Magistrate was hardly twenty two kilometers away from the Police Station but the F.I.R. was sent to the residence of the Magistrates 5.15 P.M. that day and he states that the cause of delay in sending the F.I.R. to the Magistrate was not mentioned in the case diary even. He admits that in the arrest memo (Ex.P-10), the place of arrest has also not been mentioned by him He denies the suggestion that the gun was seized by him on the spot of murder but he has changed the gun while making the seizure memo next day for one or the other reason. 24. PW-12 Hari Singh is also a witness who reached the spot soon after the murder. He says that both the gun shots were fired within four or five seconds. He says the Mangu Singh was killed by gun shot fires. He says that when he reached the spot of murder, the accused-appellant Shiv Singh was not there but the gun which was allegedly used in the murder was in the hands of Pramod Pandey, S.H.O., Police Station, Anandpur Kalu on the spot. He emphatically state that after completing the formalities on the spot, the gun was taken by the police to the concerned Police Station for other formalities. 25. In his statement under Section 313 of the Code of Criminal Procedure, the accused-appellant Shiv Singh has stated that Kishan Singh, the author F.I.R. is also a distant cousin of Mangu Singh and so Mangu Singh has been killed by or at the instance of Kishan Singh only. 25. In his statement under Section 313 of the Code of Criminal Procedure, the accused-appellant Shiv Singh has stated that Kishan Singh, the author F.I.R. is also a distant cousin of Mangu Singh and so Mangu Singh has been killed by or at the instance of Kishan Singh only. On the other hand, it has been argued on behalf of Kishan Singh that it is Shiv Singh who wants to grab and capture the agricultural land of Mangu Singh and so he has murdered Mangu Singh. 26. If we go through the statement of twelve defence witnesses, then it car be said that the defence has tried to make out a case that investigation was biased and the Investigating Officer has tried to help the author of the F.l.R though the murder was committed only by the author of the F.I.R. because there are so many infirmities in the prosecution case. The conduct of Kishan Singh. author of the F.I.R. was not natural and he has manipulated the story of murder against the accused-appellant. DW-12 Sampat Raj Gehlot is a News Reporter of Rajasthan Patrika who states that on 24.9.2004 itself, the S.H.O. had inform him on telephone that accused Shiv Singh has been arrested and the gun used it the murder has also been seized from him. He says that the said news m published next day in the news paper date 25.9.2004. This witness has been produced by defence to prove that the recovery of gun on the next date of the incident at the instance of the accused-appellant was a planted recovery am through this recovery, the Investigation Officer has tried to mis-guide the Court and has tried to hide the real case. 27. Hence this appeal or accused-appellant Shiv Singh @ Sidhnath Singh deserves to be accepted which is herby accepted and he is acquitted from barges of Section 302 of Indian Penal Code and Section 3/25 of the Arms Act, 959. He is in jail since 24.9.2004, he should be immediately released, if not wanted in any other case. Two copies of this judgment should be sent to the superintendent, Central Jail, Jodhpur, one copy for the accused-appellant and one copy for the jail record. Record of the Trial Court along with a copy of this judgment be sent back immediately to Trial Court.Appeal allowed. *******