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2016 DIGILAW 1689 (RAJ)

SHANKAR LAL S/O SH. PAT RAM v. STATE OF RAJASTHAN

2016-11-23

DINESH MEHTA, GOPAL KRISHAN VYAS

body2016
JUDGMENT : Gopal Krishan Vyas, J. 1. In this cr. appeal filed under Section 374(2) Cr.P.C. the judgment dated 1.8.2008 passed by the Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Hanumangarh in Sessions Case NO.14/2006 (State of Rajasthan Vs. Shanker Lal) is under challenge whereby the accused appellant was convicted for offence under Section 302 IPC and 3/25 (1-B)(a) of the Arms Act and following punishment was passed against him, which reads as under:- Under Section 302 IPC Imprisonment for life Under Section 3/25 (1-B) (a) of the Arms Act Three years RI Brief facts: 2. As per brief facts of the case on 22.12.2005, a written complaint (Ex.P/1) was field by Vinod Kumar S/o Leelu Ram (deceased) at Police Station Bhirani, District Hanumangarh in which it was alleged that on 21.12.2005 at about 12.00 pm in the mid night, the mother of the complainant awake and asked him that still your father has not returned home and he might be playing cards at the house of Rameshwar, so you go there and call him back. Upon asking by mother, the complainant went to the house of Rameshwar while taking torch in hand due to darkness. As per complainant when he reached near the house of Rameshwar he saw that appellant Shanker S/o Path Ram was standing near the wall of house of Rameshwar, at that time, the complainant made query what you are doing here, at that time Shankar having entered his hand in the hole (Mori) of the wall and fired a gun shot and run away from the place of occurrence. The complainant immediately entered in the house and saw that due to gunshot injury blood was coming out from the body of his father Lilu Ram and his uncle Ram Kumar, Satpal S/o Sohan Lal were taking care of him. The complainant and his uncle Ram Kumar (PW—10) tried to lift deceased Lilu Ram but he died on spot. The complainant and his uncle Ram Kumar chased Shanker Lal to catch him but in between the way when they tried to caught him Shanker Lal gave threatening to them that if you will come near to me, then I will kill you by fire, due to fear of life, the complainant and his uncle came back. 3. The complainant and his uncle Ram Kumar chased Shanker Lal to catch him but in between the way when they tried to caught him Shanker Lal gave threatening to them that if you will come near to me, then I will kill you by fire, due to fear of life, the complainant and his uncle came back. 3. According to the complainant a day before threatening was given by the appellant Shanker Lal to the complainant and his brother due to old enmity in between them, therefore the accused appellant Shanker Lal caused injury to his father deceased Lilu Ram when he was sitting in the room of the house of Rameshwar in the village. As per prosecution case, Rameshwar, uncle of complainant, Ram Kumar, Satpal and his father were playing cards in the room when incident took place. 4. Upon aforesaid complaint, formal FIR no.241 dated 22.12.2005 (Ex.p/2) was registered under Section 302 IPC and under Section 3 of the SC/ST (Prevention of Atrocities) Act at 7’O Clock against Shnaker Lal at Police Station Bhirani. 5. After registration of above FIR, the SHO Police Station, Bhirani immediately went on spot and commenced investigation. First of all prepared site plan (Ex.P/4) and recorded details of place of occurrence vide Ex.P/4A and condition of dead body was recorded vide Ex.P/5 on spot in presence of two witnesses Krishan Kumar and Om Prakash. The “Panchayatnama” of the dead body was prepared in presence of five persons, namely Bhagirath, Kailash, Krishan Kumar, Vali Ram and Om Prakash by the Circle Inspector, Nohar. 6. The blood stained soil and simple soil were taken for further investigation from the place of occurrence vide Ex.P/7 and P/8, so also, one blood stained carpet (Dari) and blanket (Kambal) and 52 playing cards were also taken in possession vide Ex.P/9. The cloths Kamiz and Payjama of the deceased Lilu Ram were taken in possession vide Ex.P/20. The body of the deceased Lilu Ram was taken to the Government Hospital, Bhadra, District Hanumangarh, where post mortem was conducted by the Senior Medical Officer, PW—1 Subhash Rajput, thereafter, the body of the deceased Lilu Ram was handed over to the son Kailash of the deceased. The body of the deceased Lilu Ram was taken to the Government Hospital, Bhadra, District Hanumangarh, where post mortem was conducted by the Senior Medical Officer, PW—1 Subhash Rajput, thereafter, the body of the deceased Lilu Ram was handed over to the son Kailash of the deceased. The photographs of the place of occurrence were also taken by the witness photographer Rohitash in presence of two witnesses Om Prakash and Krishan Kumar and those photographs were taken in possession by the investigating officer on 15.2.2006 vide Ex.P/14. The accused appellant was arrested by the SHO Police Station Bhirani vide Ex.P/3 on 13.1.2006 in presence of two witnesses Jagdish and Rajveer. After arrest upon his information given under Section 27 of the Evidence Act, one pistol of 12 bore alongwith empty cartridge was recovered from the house of the accused appellant Shanker Lal situated in Gandhi Badi in presence of two witnesses Om Prakash and Dalveer. The site plan of recovery was also prepared vide Ex.P/11. 7. After completion of investigation, the recovered articles were sent to the FSL for examination and in return the FSL report (Ex.P/33) was received from the Forensic Science Laboratory for the purpose of investigation. The Circle Inspector of Nohar PW—11 Narendra Ola conducted investigation and after completion of investigation SHO PW—1 Mahendra Dutt filed charge-sheet against the accused appellant in the court of Judicial Magistrate, Bhadara from where case was committed to the court of Special Judge, SC/ST (Prevention of Atrocities Act Cases), Hanumangarh for trial. 8. The learned trial court after providing an opportunity of hearing to the parties framed charge against the accused appellant under Section 302 IPC and under Section 3/25(1-B)(a) of the Arms Act as well as under Section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act. The accused appellant denied the charges and prayed for trial. In trial, opportunity was given to the prosecution to prove its case. The accused appellant denied the charges and prayed for trial. In trial, opportunity was given to the prosecution to prove its case. To prove the case, 13 prosecution witnesses were produced before the court and 33 documents were exhibited in support of prosecution evidence, thereafter, the statement of the accused appellant under Section 313 Cr.P.C. were recorded in which he denied all the allegations made against him by the prosecution witnesses and said that: **eSa funksZ"k gw¡] eqdnek >wBk cuk;k x;k gSA fouksn ls esjk >xM+k gqvk Fkk] gekjh iqjkuh eqdnesackth pyrh gSA bl dkj.k ls yhywjke dh e`R;q dk eq> ij >wBk eqdnek djk;k gSA eq>s iqfyl us csotg xyr fxjrkj fd;k gSA eSaus dksbZ cjkenxh ugha djkbZ u bryk nhA** 9. No evidence in defence was produced by the accused appellant inspite of granting opportunity. The learned trial court finally heard the arguments of both the parties and decided the case vide judgment dated 1.8.2008 in Sessions Case No.14/2006 whereby convicted the accused appellant under Section 302 IPC and 3/25 (1-B)(a) of the Arms Act but acquitted the accused appellant from the charge levelled against him under Section 3(3)(v) of the SC/ST (Prevention of Atrocities Case) Act and passed the sentence mentioned above. 10. In this appeal, the judgment dated 1.8.2008 passed by the learned trial court against the appellant Shanker Lal is under challenge. 11. Learned Senior Advocate Mr. HSS Kharliya appearing for the appellant vehemently argued that entire case of prosecution case is based upon concocted story, which is not supported by any independent witness, therefore, the judgment impugned is not sustainable in law, because occurrence took place in the house of Rameswhar but owner of the house Rameshwar though arrayed as witness in the list of prosecution witnesses of the charge-sheet not produced before the court to prove the incident occurred in his house. While inviting attention towards Ex.P/1 FIR it is submitted that as per allegation in the FIR it is specifically mentioned by the complainant Vinod Kumar that accused appellant inflicted fire arm injury from outside the house to the deceased Lilu Ram who was playing cards in the room with three other persons namely, Rameshwar, owner of the house, Ram Kumar, uncle of complainant and brother of deceased Lilu Ram and Satpal. As per prosecution case Shanker Lal inflicted fire arm injury due to enmity but during trial owner of the house where all the four persons were playing cards did not produce to prove the case so also, the other witness Satpal (PW—13) turned hostile and did not support the prosecution case, more so, said the date of incident, did not went to the house of Rameshwar. It is also argued that finding of conviction recorded against the accused appellant for committing offence under Section 302 IPC is based upon testimony of two interested witnesses namely PW—10 Ram Kumar, brother of the deceased, and son PW—4 Vinod Kumar, author of the FIR but testimony of these two witnesses have not been supported by any independent witnesses, therefore, the finding given by the learned trial court deserves to be quashed. 12. Learned counsel for the appellant vehemently argued that upon all the recovery memos prepared during investigation, two witnesses krishan Kumar and Om Prakash put their signatures as witness, but out of two motbir witnesses, only Om Prakash produced before the Court as PW—2 to prove the entire investigation, but it is admitted position of the case that Om Prakash (PW—2) is also interested witness because he was having thick relation with Lilu Ram, therefore, the conviction based upon the testimony of interested witnesses cannot be accepted because it has not been corroborated by the independent witnesses. 13. Learned counsel for the appellant submits that although during investigation, a pistol and one empty cartridge was recovered from the house of the accused appellant but as per FSL report (Ex.P/33) it has not been proved that injury caused to the deceased was inflicted by the same pistol, therefore, it is a case in which prosecution has failed to prove its case beyond reasonable doubt on the basis of so called recovery of pistol. 14. With regard to motive, it is submitted that although allegations are levelled by the prosecution witnesses that there was enmity in between the accused appellant and Vinod Kumar and deceased Lilu Ram, therefore, accused appellant caused gun shot injury to deceased, but this allegation is totally false because if accused appellant was having any intention to kill due to enmity then at the time of occurrence he was having opportunity to fire upon Vinod Kumar not the father. According to the learned counsel for the appellant the occurrence took place in the room where admittedly accused appellant did not enter and as per prosecution case gunshot injury inflicted from outside the house while putting hand in hole (Mori) by the accused Shanker Lal, when deceased was playing cards in the room, but said allegation of the prosecution have no foundation to stand before the law. So as to convict the accused appellant, for the reason that, as per FIR itself the complainant Vinod Kumar was present at the time of inflicting injury by the accused appellant, but no fire was made upon Vinod Kumar nor any injury was caused by the accused appellant to him. As per the prosecution case after making fire from hole (Mori) accused ran away from the place of occurrence. On the basis of the above, arguments, it is submitted that whole story of motive is concocted by the prosecution so as to hold accused appellant guilty, therefore, the judgment impugned is not sustainable in law. 15. Learned counsel for the appellant further argued that testimony of interested witnesses cannot be relied upon so as to hold any person guilty if independent witnesses arrayed in the list of chargesheet, not produced before the court to prove the case of prosecution. 16. On the basis of above arguments, it is submitted that neither the incident nor the motive and recovery has been proved by the prosecution beyond doubt but the learned trial court erroneously convicted the accused appellant for offence under Section 302 IPC without any trustworthy and reliable evidence, therefore, while giving benefit of doubt, the accused appellant may be acquitted from the charges levelled against him because prosecution has failed to prove its case beyond doubt. In support of his arguments learned counsel for the appellant has invited attention upon judgment of the Hon'ble Supreme Court reported in the case of (2012) 4 SCC 722 : Govindaraju @ Govinda Vs. State by Sriramapuram Police Station and Anr. 17. Per contra, learned Public Prosecutor vehemently submits that it is a case in which the prosecution has proved its case beyond reasonable doubt. State by Sriramapuram Police Station and Anr. 17. Per contra, learned Public Prosecutor vehemently submits that it is a case in which the prosecution has proved its case beyond reasonable doubt. While inviting attention towards the statement of PW—4 Vinod Kumar (author of FIR) and PW—10 Ram Kumar it is submitted that both the witnesses categorically made allegation against the accused appellant that he was present at the time of occurrence took place and made fire inside the room from hole (Mori) upon decease Lilu Ram and due to the said injury inflicted by pistol, Lilu Ram fell down and died. According to learned Public Prosecutor this fact has categorically been proved by the prosecution by leading trustworthy evidence of eye witnesses PW—4 Vinod Kumar and Ram Kumar (PW—10). The recovery of pistol has also been proved, therefore, there is no question to raise voice against the finding arrived at by the learned trial court whereby the accused appellant has been convicted for alleged offence of murder of late Sh. Lilu Ram, father of the complainant Vinod Kumar. Learned Public Prosecutor vehemently argued that prosecution has proved its case beyond reasonable doubt while leading trustworthy evidence of recovery and eye witnesses and therefore, this appeal may kindly be dismissed. 18. After hearing learned counsel for the parties, we have perused the entire evidence in the light of arguments advanced by the parties. It is admitted case of the prosecution that written complaint was filed by Vinod Kumar (PW—4) at Police Station Bhirani and as per his statement on oath before the court that complaint (Ex.P/1) was written by Satyapraksh Beniwal of Ghandi Badi as per instruction of the complainant, but Satyaprakash Beniwal did not appear before the court to prove the said fact. In the written complaint (Ex.P/1) a specific fact was disclosed by the complainant Vinod Kumar (PW—4) that upon asking by my mother in the night at 12’O Clock on 22.12.2005 I went to call my father from the house of Rameshwar and when I reached to the house of Rameshwar I saw that outside the house there was hole (Mori) entering in the room where accused appellant was standing near the hole (Mori). The complainant put light of torch upon the accused appellant and said what you are doing here, at that time, accused Shnaker Lal put his hand inside the hole (Mori) and fired inside the room. Aforesaid allegation levelled in the FIR loudly speaks that accused appellant did not enter in the room and caused injury by fire from hole (Mori) of the room in which four persons were plying cards namely Lilu Ram, Rameshwar, owner of the house, Satpal and Ram Kumar, brother of the deceased. It is also relevant to mention here that an allegation is levelled by the complainant Vinod Kumar that there was enmity in between him and accused appellant but what type of enmity was in between them have not been disclosed. Upon consideration of the statement of PW—4 Vinod Kumar, we have no hesitation to observe that as per his testimony neither the accused appellant entered in the room nor it was possible for him to see the entire room from the hole (Mori) which is situated outside the house of Rameshwar. Similarly, the name of Rameshwar, owner of the house was included in the list of witnesses to prove the prosecution case, but Rameshwar did not appear as witness to prove the incident, which is alleged to be occurred in his house. It is also worthwhile to observe that independent witness Satpal appeared before the court as PW—13, but turned hostile and did not support the prosecution case, more so, the said independent witness specifically said on oath that I did not went to the house of Rameshwar to play cards on the date of incident. 19. The learned trial court relied upon the statement of PW—10 Ram Kumar, real brother of the deceased, who was claimed to be present at the time of occurrence took place. 19. The learned trial court relied upon the statement of PW—10 Ram Kumar, real brother of the deceased, who was claimed to be present at the time of occurrence took place. To assess his evidence we have perused the examination-in-chief of his statement which reads as under: ^^vkt ls djhc Ms<+ lky igys dh ckr gSA jkr ds 12 cts ds le; 'kadjyky us eksjh esa ns[kdj yhywjke ds lriky nksuksa us yhywjke dks lEHkkyk FkkA geus mldk gkFk idM+ dj ns[kk fd ukMh;s fxj xbZ Fkh vkSj mldks lkal ugha vk jgk FkkA fQj mlh le; ogka ij fouksn us esjs dks dgk Fkk fd pyks vius 'kadj dks idM+rs gSa ge Hkkxdj 'kadj ds ihNs x;sA tc ge mldks idM+us ds fy;s utnhd x;s rks mlus viuk fiLrkSy fudky fy;k Fkk vkSj dgk fd vxj ikl esa vk;s rks xksyh ekj nwaxk fQj ge Mjrs gqos okil vk x;s FksA fQj ge ogka ij dejs esa cSBs jgs Fks fQj fouksn us gekjs dks dgk fd eSa lk/ku djus ds fy;s tkrk gwa fQj fouksn dqekj fHkjkuh Fkkus esa x;kA mlus Fkkus esa lwpuk dj nh FkhA ,d efgus igys fouksn vkSj 'kadj dh vkil yhywjk py jgh FkhA^^ 20. Upon perusal of above statement it is apparent that accused appellant did not enter in the house of Rameshwar and the room where deceased Lilu Ram, Satpal, and Ram Kumar (PW—10) were playing cards. In the cross-examination, the witness PW—10 Ram Kumar specifically stated that Satpal was also playing cards with them when incident took place. Following facts are disclosed in the cross-examination by the witness PW—10 Ram Kumar to prove the fact that they were playing cards, which reads as under: ^^gekjs gkFk esa 17&17 iRrs FksA ge lrkfj;ka [ksy [ksy jgs FksA eq>s /;ku ugha gS fd fd gekjh ckth iapkl :i;s dh Fkh ;k vf/kd :i;s dh FkhA eSa jke Fkk vkSj ?kVuk okys fnu Hkh x;k FkkA eSaus ftdj lquk Fkk fd lriky Hkh ogka ij tqvk [ksyus ds fy;s vkrk FkkA ogka ij xkao ds o xkao ds ckgj ls Hkh yksx tqvk iRrs ogha ij Mky fn;s Fks tks gekjs ls ogha ij gh fc[kj x;s FksA iqfyl tc vkbZ Fkh ml le; vyx vyx txg ij 17&17 iRrs fc[kjs gqos iM+s FksA 21. Upon consideration of above statement, it is obvious that as per prosecution case four persons were playing cards including Ramewhar, Lilu Ram (deceased), Ram Kumar (PW—10), and Satpal (PW— 13) and everyone were having 17 cards each in their hands but is very strange that at the time of inspection of the room, only 52 cards were recovered from the place of occurrence which is evident from the recovery memo (Ex.P/9), but to prove the said fact neither Rameshwar, owner of the house appeared before the court nor PW—13 Satpal supported the allegation. 22. With regard to motive, PW—4 Vinod Kumar specifically stated on oath in his statement that litigation is going on in between us and Shanker Lal, therefore, he gave threatening to him that he will kill him and your father. Vinod Kuamr specifically stated before the court that Shanker Lal was standing outside the house of Rameswhar having pistol in his hands in the night at 12’O Clock when Vinod Kumar reached to the house of Rameshwar where he saw that accused appellant was standing near to the wall of the house of Rameshwar where there was a hole (Mori) and upon calling what you are doing here, the accused appellant put his hand inside the hole (Mori) and made fire upon the deceased, admittedly Vinod Kumar being son of deceased cannot be treated to be eye witness of the incident occurred inside room because as per his statement he was standing outside the house of Rameshwar and accused appellant was also standing outside the house of Rameshwar. Even if the testimony of this witness is accepted then also it cannot be said that it was possible for the accused appellant see inside the room to cause injury particularly to the deceased from outside wall putting his hand in the hole. 23. PW—10 Ram Kumar, real brother of the deceased stated before the court that he was inside the room where injury was caused from hole but upon perusal of photographs (Ex.P/19) it cannot be said that it was possible for any person to see the entire room where persons were sitting and playing cards. 24. Upon assessment of entire evidence it is revealed that PW—1 Mahendra Dutt, SHO registered the FIR and filed charge-sheet against the accused appellant. PW—2 Om Prakash is the Motbir who put his signatures on the recovery memos. 24. Upon assessment of entire evidence it is revealed that PW—1 Mahendra Dutt, SHO registered the FIR and filed charge-sheet against the accused appellant. PW—2 Om Prakash is the Motbir who put his signatures on the recovery memos. The said witness categorically stated before the court that in the night I do not went to the place of occurrence and in the morning at 8’O Clock I went on spot. 25. PW-3 Dalveer is the witness who put signature upon recovery memo (Ex.P/11). PW—5 Rohitash is the photographer. The witness PW—6 Dr. Subhash Rajput who was posted at Government Hospital, Bhadra as SMO, conducted post mortem of the body of the deceased Lilu Ram and after examination of the body gave his opinion that death was caused due to fire arm injury upon lungs and loss of blood. The said witness specifically stated that cardbad found in the body of the deceased was taken as sample and sealed on spot for examination by ballistic expert. 26. PW—7 Gulab Singh was working as Armor in the police line, Hanumangarh where recovered pistol in the sealed condition was examined. The said witness categorically stated that I opened the sealed cover in which pistol was lying and find that pistol was serviceable and there was empty cartridge which was already used. In the cross-examination it is said by him that today neither the pistol or the empty cartridge is before me in the court. The said witness stated before the court that eSa ;g ugha dg ldrk fd esjh tkap ds le; fiLrkSy dk vkf[kjh Qk;j dc gqvk FkkA eSaus fiLrkSy dh vPNh rjg ls tkap dh FkhA eSa ugha dg ldrk fd [kkyh [kks[kk fdrus fnu igys Qk;j fd;k x;k FkkA ;g dguk xyr gS fd fiLrkSy ;k [kkyh [kks[kk dh tkap ugha dh gksA 27. PW—8 Leelawati wife of deceased categorically stated before the court that my husband usually going to the house of Rameshwar for playing cards and on the date of incident, he went to the house of Rameshwar but did not come back till 12’O Clock in the night, therefore, her son Vinod Kumar was asked to take back his father from the house of Rameshwar. It is also stated that after 1 ½ hours Vinod Kumar came back and informed that Shanker Lal has inflicted fire arm injury to the father because he was having enmity with my son. For enmity it is stated by her that ^^esjs yM+ds fouksn dh vksj eqyfTke dh vkil es jaft'k Fkh ml jfta'k ds dkj.k esjs ifr dks 'kadj us ekj fn;k FkkA^^ 28. PW—9 Kalu Ram was working as Constable in the Police Station Bhirani and he was incharge of Malkhana where articles were deposited. 29. PW—10 Ram Kumar is the real brother of the deceased. The witness Ram Kumar stated in his statement on oath that on the date of occurrence I, deceased Lilu Ram, Satpal and Rameshwar were playing cards in the house of Rameshwar, at that time, fire arm injury from hole (Mori) was inflicted by the accused and due to the said injury all playing cards were scattered, thereafter, I and Satpal both take care of Lilu Ram, but he died on spot, at that time, Vinod Kumar and Rameswhar also came in the room because Rameswhar went outside the room for preparing tea. According to PW—10 Ram Kumar, his nephew Vinod Kumar asked him to caught Shanker Lal, therefore, they ran behind Shanker Lal when they reached near Shanker Lal, he gave threatening while taking pistol in his hand that if you will come near I will kill you, therefore, we came back to the house and informed the police. The witness Ram Kumar categorically stated the locality where the occurrence took place, there are so many houses where Daya Ram, Fula Ram, Ram Kumar, Maini, Amilal and Ramjilal are residing and in the whole village there are 1200 residents. It is also stated that Satpal was present at the time of occurrence took place, but Satpal (PW—13) did not support the prosecution case. 30. PW—11 Narendra Ola was working as Circle Inspector, Nohar, who conducted the entire investigation and PW—12 Fateh Singh was incharge of Malkhana where four packets sealed of articles were deposited and later on those packets were sent through Kalu Ram, FC to the FSL for examination. 31. 30. PW—11 Narendra Ola was working as Circle Inspector, Nohar, who conducted the entire investigation and PW—12 Fateh Singh was incharge of Malkhana where four packets sealed of articles were deposited and later on those packets were sent through Kalu Ram, FC to the FSL for examination. 31. Upon consideration of the statement of two witnesses, PW—4 Vinod Kumar and PW—10 Ram Kumar, son and brother of deceased, it is abundantly clear that both those witnesses said that fire arm injury was caused from outside the house while entering hand in the hole (Mori) of the wall of the room but said allegation has not been proved by independent witness because the owner of house Rameswhar in which occurrence took place did not appear before the court to prove the prosecution case in spite of fact that his name was mentioned in the list of witnesses of the charge-sheet and other independent witness PW—13 Satpal turned hostile, therefore, the whole prosecution story became doubtful because Rameswhar, owner of the house where occurrence took place, was the best witness to support the testimony of both the witnesses PW—4 Vinod Kumar and PW—10 Ram Kumar has not been produced as witness to support the fact that Rameshwar was present at the time of occurrence took place in the house. Likewise Satpal (PW—13) the independent witness whose presence has been admitted by both the witnesses categorically denied that he was present at the time of occurrence took place. 32. In view of the above, it is obvious that there is no independent witnesses to prove the prosecution case or to support the allegation of PW—4 Vinod Kumar author of the FIR and PW—10 Ram Kumar, brother of the deceased. The entire prosecution case is based upon testimony of two close relative witnesses, they nowhere stated before the court that Shanker Lal entered in the room and inflicted fire arm injury to the deceased Lilu Ram, more so, according to them injury was caused from outside the house that too, by putting hand in the hole of the wall known as “Mori”. 33. Admittedly, the alleged incident occurred at 12’O Clock in the night, at that time, Ram Kumar (PW—10) was not standing outside the house nor Shanker Lal entered in the room. 33. Admittedly, the alleged incident occurred at 12’O Clock in the night, at that time, Ram Kumar (PW—10) was not standing outside the house nor Shanker Lal entered in the room. The allegation is that Shanker Lal entered his hand in the hole (Mori) of the wall of the room from outside the house and caused the injury where four persons were sitting. 34. In our opinion, such type of evidence of relative which is not supported by any independent witness cannot be relied upon by the trial court so as to accept the prosecution case, because upon such type of evidence of relative entire prosecution story becomes doubtful. 35. It is true that pistol was recovered as per the information given by the accused appellant alongwith empty cartridge from his house and as per FSL report pistol was serviceable but specific opinion is given that no definite opinion can be given that two black plastic cushion pieces, marked D/1 and D/2 have been fired from submitted 12 bore counter made pistol. It is true that pistol was recovered from the house of the accused appellant on 13.1.2006 alongwith empty cartridge and as per FSL report (Ex.P/33) the said pistol was serviceable and empty cartridge was fired by 12 bore counter made pistol recovered from the accused appellant from his house from the place of occurrence, therefore, on the basis of FSL report it cannot be said that prosecution has proved the fact that fire arm injury caused to the deceased Lilu Ram was caused by the accused appellant by the pistol recovered from him. 36. In view of the above discussion, we are of the opinion that conviction can be based upon testimony of reliable interested witnesses, but at the same time, we cannot loss sight of the fact that if prosecution case is based upon testimony of independent witnesses as well as relative witnesses then corroboration by the independent evidence is necessary for the prosecution case, based upon the testimony of interested witnesses. Here in this case, admittedly, at the place of occurrence four persons were present namely, deceased Lilu Ram, Rameshwar, owner of the house where occurrence took place, PW—13 Satpal and PW—10 Ram Kumar, out of all these four witnesses the owner of the house Rameshwar did not produce before the court to prove the incident occurred in his house. Here in this case, admittedly, at the place of occurrence four persons were present namely, deceased Lilu Ram, Rameshwar, owner of the house where occurrence took place, PW—13 Satpal and PW—10 Ram Kumar, out of all these four witnesses the owner of the house Rameshwar did not produce before the court to prove the incident occurred in his house. The other independent witness Satpal (PW—13) turned hostile and did not support the prosecution case. Admittedly, there is no allegation of the prosecution that accused appellant entered in the house or room of Rameshwar and in front of them accused inflicted fire arm injury. The only allegation of PW—4 Vinod Kumar is that in the night at 12’O Clock on 1.12.2006 in mid might in the outside of the house of Rameshwar, Shanker Lal entered his hand in the hole (Mori) and caused injury to the deceased Lilu Ram. The entire evidence loudly speaks that prosecution story doubtful because it is not even supported by any independent witness who were said to be present in the room where occurrence took place, so also, the story is far from the probabilities. In this case for following reasons, we are of the opinion that prosecution has not proved its case beyond reasonable doubt: A. Admittedly, occurrence took place in the house of Rameshwar where deceased Lilu Ram, PW—13 Satpal and PW—10 Ram Kumar, brother of the deceased were playing cards, but Rameshwar, owner of the house though arrayed in the list of witnesses filed alongwith charge-sheet, not produced before the court to prove the incident. B. That independent witness PW—13 Satpal who was inside the room, turned hostile and specifically stated before the court that I never went to the house of Rameshwar for playing cards nor I saw Shanker Lal on the place of occurrence. C. PW—10 Ram Kumar, brother of the deceased never stated in his statement that Shanker Lal entered in the house or room of Rameshwar where they were playing cards, therefore, the prosecution story is become doubtful. D. The PW—6 Dr. Subhash Rajput stated before the court that cordbad taken from the body was preserved in bottle and sealed on spot for sending to the ballistic expert. In the FSL report (Ex.P/33) it was reported that: “4. Two black plastic cushion wad pieces (D/1 & D/2) from ‘Unmarked’ packet are normally used in 12-bore ammunition. D. The PW—6 Dr. Subhash Rajput stated before the court that cordbad taken from the body was preserved in bottle and sealed on spot for sending to the ballistic expert. In the FSL report (Ex.P/33) it was reported that: “4. Two black plastic cushion wad pieces (D/1 & D/2) from ‘Unmarked’ packet are normally used in 12-bore ammunition. These wad pieces (D/1 & D/2) appear to be pieces of one cushion was and could have been fired from submitted 12-bore country made pistol (W/1) from packet ‘B’” E. The pistol which was recovered from the house of accused appellant alongwith empty cartridge was examined by PW—7 Gulab Singh. The said witness specifically stated that I cannot give any opinion when last fire was made from pistol so also I cannot said that empty cartridge recovered from the house of accused appellant was fired how many days back. Therefore, it is obvious that the prosecution case became doubtful because there is no confirm opinion by the FSL in Ex.P/33 or by the witness PW—7 Gulab Singh that injury was definitely caused by the pistol which is recovered from the house of accused appellant. F. The FIR was filed by Vinod Kumar (PW—4) son of the deceased. The said witness nowhere stated that accused appellant entered in the house of Rameshwar and in the room thereof, more so, it is stated by him that in the night at 12’O Clock when I reached to the house of Rameshwar, the accused appellant Shanker Lal was standing outside the house and upon asking what you are doing here, Shanker Lal put his hand in the whole (Mori) and made fire. 37. In our opinion, such type of evidence certainly became doubtful because it is not possible for a person to target any person to inflict injury from hole of the house. In this case, the prosecution come up with the case that there was enmity between the accused appellant and author of the FIR Vinod Kumar and if Vinod Kumar was available before the accused appellant then he was to be targeted by fire arm injury not the father of the complainant with whom there was no enmity as per statement of Lilawati. The above fact speak that whole prosecution story based upon the testimony of interested witnesses is seriously doubtful. 38. The above fact speak that whole prosecution story based upon the testimony of interested witnesses is seriously doubtful. 38. In the case of Govindaraju @ Govinda (supra), the Hon'ble Supreme Court held that nonexamination of material witness creates doubt upon the prosecution story. The paras nos.65 and 66 68 are relevant, which reads as under: “65. The applicability of the principle of 'adverse inference' pre-supposes that withholding was of such material witnesses who could have stated precisely and cogently the events as they occurred. Without their examination, there would remain a vacuum in the case of the prosecution. The doctor was a cited witness but was still not examined. The name of the Head Constable and the Constable appears in the Police investigation but still they were not examined. It is true that in their absence the post mortem report and FSL report were exhibited and could be read in evidence. But still the lacuna in the case of the prosecution remains unexplained and the chain of events unconnected. For instance, the Head Constable could have described the events that occurred right from the place of occurrence to the death of the deceased. They could have well explained as to why it was not possible for one Police Officer, one Head Constable and one Constable to apprehend all the accused or any of them immediately after the occurrence or even make enquiry about their names. Similarly, the doctor could have explained whether inflicting of such injuries with the knife recovered was even possible or not. The expert from the FSL could have explained whether or not the weapons of offence contained human blood and, if so, of what blood group and whether the clothes of the deceased contained the same blood group as was on the weapons used in the commission of the crime. The uncertainties and unexplained matters of the FSL report could have been explained by the expert. There is no justification on record as to why these witnesses were not examined despite their availability. 66. This Court in the case of Takhaji Hiraji (supra) clearly stated that material witness is one who would unfold the genesis of the incident or an essential part of the prosecution case and by examining such witnesses the gaps or infirmities in the case of the prosecution could be supplied. 66. This Court in the case of Takhaji Hiraji (supra) clearly stated that material witness is one who would unfold the genesis of the incident or an essential part of the prosecution case and by examining such witnesses the gaps or infirmities in the case of the prosecution could be supplied. If such a witness, without justification, is not examined, inference against the prosecution can be drawn by the Court. The fact that the witnesses who were necessary to unfold the narrative of the incident and though not examined, but were cited by the prosecution, certainly raises a suspicion. When the principal witnesses of the prosecution become hostile, greater is the requirement of the prosecution to examine all other material witnesses who could depose in completing the chain by proven facts. This view was reiterated by this Court in the case of Yakub Ismailbhai Patel v. State of Gujarat. 39. It is settled principle of law that the prosecution is required to prove its case beyond reasonable doubt, but here in this case, in absence of material evidence of independent witnesses, there is shadow of doubt upon the prosecution story because independent witness Rameshwar, owner of the house has not been produced by the prosecution to prove the incident in his house and other independent witness PW—13 Satpal turned hostile and did not support the prosecution case. 40. In view of the above discussion in the light of law laid down by the Hon'ble Supreme Court, we are of the opinion that although the prosecution has failed to prove its case beyond reasonable doubt for offence under Section 302 IPC, but has proved the case for offence under Section 3/25(1-B)(a) of the Arms Act because pistol was recovered from the house of the accused appellant which is proved by the prosecution on the basis of trustworthy evidence of recovery. 41. Consequently, while giving benefit of doubt this cr. appeal is partly allowed. The conviction and sentence imposed against the accused appellant Shanker Lal for offence under Section 302 IPC by the learned Special Judge, SC/ST (Prevention of Atrocities Act Cases), Hanumangarh vide judgment dated 1.8.2008 in Sessions Case No.14/2006 is here quashed and set aside but the conviction and sentence passed against the accused appellant for the offence under Section 3/25(1-B) (a) of the Arms Act is hereby maintained.