JUDGMENT : G.R. Moolchandani, J. 1. Appellants-accused Mukhtiyar and Junned have challenged the validity of judgment dated 09/08/2011 passed by Additional District and Sessions Judge (Fast Track) No. 1, Udaipur in Sessions Case No. 189/2009 by which both the accused-appellants have been convicted under Sections 302 and 302/34 of IPC and have been sentenced to undergo life imprisonment coupled with a fine of Rs. 2,000/- and further to undergo one month simple imprisonment in event of non-payment of the fine imposed. 2. According to the F.I.R Ex. 2,000/- and further to undergo one month simple imprisonment in event of non-payment of the fine imposed. 2. According to the F.I.R Ex. P.1 lodged by PW.1 Heeralal, brother of the deceased, it has been said that: ^^bŸkyk tckuh izkFkhZ ghjkyky S/o Lo- ckcwyky th dhj & mez 18 o"kZ] is'kk lsYl eSu fuoklh ljdkjh izsl ds ihNs] P.S. lwjtiksy] mn;iqj fnukad 14-09-08 le; &5-15 pm ceqdke jktdh; egkjk.k Hkwiky fpfdRlky; mn;iqj Jh ghjkyky S/o Loa ckcwyky th dhj us bŸkyk tckuh fy[kkbZ fd vkt fnukad 14-09-08 dks lqcg djhc 11&11-30 cts eS rFkk esjk HkkbZ ekaxhyky gekjs ?kj ij FksA ml le; esjs HkkbZ ekaxhyky dk fe= tkfgn ?kj vk;k rFkk esjk HkkbZ ekaxhyky mlds lkFk pyk x;k FkkA fnu esa djhc 2-30&2-45 cts eS ?kj ls iVsy ldZy ds fy, fudykA rhu cts ds vkl&ikl eSa fd'ku ikys ikj djds iVsy ldZy dh rjQ tk jgk Fkk ml le; ,d LML LdwVj ij iVsy ldZy dh rjQ ls eq[;r;kj rFkk tquSn Fks tks rst xfr ls vkrs utj vk,A bu nksuks dks eS tkurk gwWA eq[r;kj esjs ?kj ds ikl jgrk gS rFkk tquSn mldk fe= gSA eq[r;kj ds ikl LML LdwVj gSA blds ikap feUkV ckn esa eS iVsy ldZy igqWpk tgkW dbZ yksx ,d= gks j[ks Fks vkSj ;s dg jgs Fks fd xksyh ekjus okyk LdwVj ij Fkk] nks yksx Fks tks Hkkx x;s gSaA eSus HkhM+ dh chp es ns[kk rks ,d O;fDr lM+d ij iM+k Fkk ftlds flj ls [kwu fudy jgk FkkA FkksM+k ikl ls ns[kk rks irk pyk fd lM+d ij iM+k og O;fDr rks esjk cM+k HkkbZ eakxhyky Fkk tks tksj&tksj ls lkWl ys jgk FkkA brus esa iqfyl okys ogkW vk x;s tks esjs HkkbZ eakxhyky dks vLirky ys x;sA ogha HkhM+ ds ckgj eq>s tkfgn feyk ftlus eq>s crk;k fd eS vkSj eksaxhyky njoktk ns[kus iVsy ldZy ls vkxs LdwVj ij tk jgs FksA ml le; eq[r;kj rFkk tquSn nksuks LdwVj ij vk;s rFkk gesa :dk;k vkSj esjs lkFk LdwVj ij ihNs cSBs ekaxhyky dks xksyh ekj dj Hkkx x;sA eS Mj ds ekjs ,d rjQ vk x;kA fQj eSa jokuk gks M.B. vLirky igqWpk tgka eq>s irk pyk fd esjs HkkbZ eakxhyky dh e`R;q gks x;h gSA eq[r;kj rFkk tquSn esjs HkkbZ ekaxhyky ls jaftl j[krs gSA bUgksus esjs HkkbZ ds f[kykQ eqdnek Hkh djk;k Fkk ftlesa esjk HkkbZ tsy esa Hkh x;k Fkk tks eghus Hkj igys gh NqVk gS rFkk jk[kh ds fnu jkr djhc 8&9 cts bu nksuks es esjs ?kj vkdj /kedh nh Fkh fd eakxhyky dgha utj vk;k rks Vkaxs dkV nsaxsA [kRe dj nsaxsA bu yksxks us esjs HkkbZ dh xksyh ekjdj gR;k dj nh gSA d`i;k dkuwuh dk;Zokgh djkosA^^ 3. Heard the submissions of both the sides, learned counsel for the accused-appellants has contended that the prosecution has miserably failed to establish its case and so called important witnesses of the prosecution have become hostile and they have not supported the story of the prosecution, sole eye witness Jahid has also not supported the story of the prosecution and has not averred the names of the alleged accused persons and as per investigating Officer's evidence, the complainant brother of the deceased was not present at the site of the occurrence nor he reached there after the crime and entire story, which has been narrated by the complainant is fabricated. It has further been argued that the calibre of the alleged weapon has also not been disclosed by the prosecution nor its recovery has been established because PW.17 a witness of the recovery has said that the alleged weapon was kept in the pocket by the policemen and was not sealed during the alleged recovery and another witness of the recovery PW.8 has become hostile, so the recovery of the alleged weapon, allegedly used in the crime has become dubious so, FSL report procured on the basis of the same, becomes futile and not worthy to be read in evidence. It has also been argued that PW.1 Jahid has become hostile and he has specifically observed that the assailants were of black complexion and appearing similar to the habitants of Bihar and U.P. and they fled away on motorcycle, whereas complainant PW.1 Heeralal, brother of the deceased, has said that the assailants were, seen coming over hastily on LML Scooter, which too makes the story of the prosecution false, despite the trial Court has shown apathy to the true version of the prosecution story and evidence adduced and thus has erred in law in passing the impugned judgment, whereas on the basis of the available evidence the appellants are liable to be acquitted and has submitted to allow the appeal and acquit the accused-appellants. On the contrary, learned public prosecutor has said that there is no error in the findings of learned trial Court because recovery of weapon and cartridge has been made from the accused persons, which has been further confirmed and established by Forensic Laboratory Report that the weapon was found with the residuals of the fire and rimless cover of the bullet has also been opined to have been fired from the same weapon, there was enmity between the appellants and deceased and they were seen coming over hastily near and from the direction of the occurrence by the complainant-brother of the deceased and on approaching there, complainant found his brother injured with bullet injury, who subsequently succumbed to his injuries in the hospital and an effective and precise version has been narrated by the complainant, which is corroborated by the recovery and FSL report. In these circumstances, the contentions as raised by the defence counsel, do not have got any force, prosecution has given positive evidence and has succeeded in establishing its case against the appellants-accused and there is no infirmity or flaw in the judgment impugned, so the appeal be dismissed. 4. A perusal of the evidence on the record shows that the memo of recovery of alleged weapon Ex. 12 does not divulge nature and calibre of the weapon involved and its bore-calibre has also not been described. The recovery witnesses of these exhibits are Maqbool Ahmed and Ravi Verma but Maqbool Ahmed PW-8 has not supported recovery and after being hostile, he has said that no proceedings were conducted before him and has further said that it is wrong that alleged pistol and cartridges were recovered from the accused persons before him or any confiscation memo Ex. 13 was prepared before him. Sketch map Ex. 17 relating thereto has also been declined, likewise, if we peruse the evidence of another recovery witness Ravi Verma PW-17 then he too has said in his cross-examination that he did not read Ex. 12 and Ex. 13 was prepared before him. Sketch map Ex. 17 relating thereto has also been declined, likewise, if we peruse the evidence of another recovery witness Ravi Verma PW-17 then he too has said in his cross-examination that he did not read Ex. 12 and Ex. 13 prior to signing and has also observed that revolver and cartridges were kept in the pocket by the police after seizure and were carried away by the police, so such a recital of recovery witness maligns and shadow a doubt on the recovery of the weapon alleged, because one of the witness has not supported the recovery and other has said that post seizure, the weapon and cartridges were not sealed and were carried away by inserting them into the pocket by the seizure authorities, which makes the recovery of the alleged weapon dubious and unreliable. 5. As per the prosecution story and revelations made in the FIR, which has been lodged by the brother of the deceased, both the accused persons were seen by him coming from the direction of occurrence on the public way in a hurried position on LML Scooter and "Jahid" is said to be "sole" eyewitness along with whom deceased had gone and the alleged incident occurred. According to version of said eye-witness Jahid PW-4, who after turning hostile has observed that "Mangilal had asked him to leave him up to Patel Circle and he was going towards Patel Circle with pillion rider Mangilal and Mangilal called someone and asked him to stop the scooter, in the meanwhile, somebody shot at Mangilal and the persons involved in shooting were unknown to him; he did not recognize them; they were of 30-35 years of age and fled away on motorcycle, so the nature of vehicle by which the alleged assailants stated to have fled away is said to be motorcycle and not a scooter as has been alleged and recited by the complainant in the FIR as well as in his testimony. 6. Sole eye-witness of the incident "Jahid" PW-4 has not supported the version of the prosecution and he has become hostile. He has declined his police statements Ex. 11 and has specifically denied that Mukhtiyar and Junaid were the assailants and has said that they were not there at the place of occurrence. 6. Sole eye-witness of the incident "Jahid" PW-4 has not supported the version of the prosecution and he has become hostile. He has declined his police statements Ex. 11 and has specifically denied that Mukhtiyar and Junaid were the assailants and has said that they were not there at the place of occurrence. He has also said that after the incident he was puzzled and went to the home of Mangilal to inform his family members, then he went to hospital and before he could reach hospital injured was taken there by the police and by that time Mangilal had died. Appreciation of the evidence of this witness is vital because he has not narrated anything alike and akin to first information report, which suggests that complainant - brother of the deceased had reached at the site of the occurrence and this aspect of his non-presence on the site of occurrence fortifies by the evidence of investigating officer who too has not narrated anything alike that complainant - brother of the deceased arrived at the place of occurrence, which makes the version of the FIR as well as testimony of the complainant, Heeralal - brother of the deceased suspicious and not worthy to be acceded to being unreliable. 7. In the light of the aforesaid deliberations, testimony of Heeralal PW-1 does not infuses credence because Heeralal PW-1 while reiterating his version of FIR has said that on the way he had witnessed Mukhtiyar and Junaid coming on LML Scooter, while he was going towards Patel Circle on 14.09.2008 at about 2.30 in the noon and he found little bit ahead his brother bleeding profusely, it has further been said by this witness that little later Jahid met him, who informed him that Mukhtiyar and Junaid shot at pillion rider Mangilal on his head but version of both these witnesses significantly varies, which makes the story of the prosecution feeble and falsifies the FIR, basis of the story of the prosecution. 8. Recitals as made by Heeralal PW-1 in his evidence appears to be non-trustworthy because he has said that after finding his brother injured by bullet injury and under the pool of blood, he went away to his home to inform others and later went to hospital, where his brother could not be found. 9. 8. Recitals as made by Heeralal PW-1 in his evidence appears to be non-trustworthy because he has said that after finding his brother injured by bullet injury and under the pool of blood, he went away to his home to inform others and later went to hospital, where his brother could not be found. 9. In normal course, a person whose brother is found inflicted with certain serious homicidal bullet injury on the public way, he will invariable rush to help his brother and take him to the nearby hospital and would not return to his home, abandoning his brother there in predicament helplessly. This aspect of evidence, which has been given by this witness, rather makes the testimony of this witness unnatural and unacceptable. 10. It has also been said by Heeralal PW-1 that he was on foot and was going to witness a movie in Chetak Cinema but he has remained unable to say as to which movie he was going to witness and has shown his ignorance about the name of the movie, which too falsifies the version of this witness. He has also said that his brother was suffering with agony of injury and was lying under pool of blood but he did not try to rise him or embraced him emotionally. He has also introduced a new fact in the cross-examination that at that time his friends Mukesh and Raju were accompanying him and has also said that his brother was taken away to hospital and by that time police was known that he was Heeralal, brother of unfortunate Mangilal. He also said that Dalpat Singh Ji (I.O.) had seen him at the place of occurrence and had talked with him, but if we weigh the evidence of the Investigating Officer Dalpat Singh, then nothing of this kind emerges from the evidence of the Investigating Officer Dalpat Singh. 11. In cross-examination, a surprising aspect has also emerged from the evidence of complainant Heeralal since he has said that, ^^;g lgh gS fd eq>s ?kVuk dh dksbZ tkudkjh ugha gS] eSa tkfgn ds dgs vuqlkj gh c;ku ns jgk gwaA eSus dksbZ ?kVuk ugha ns[kh tkfgn us ns[kh FkhA^^ It is also important that the deceased was admitted as "unknown" and by that time of his arrival and admission in the hospital, even name of the injured was "unknown" to the police. Thus, the evidence of Heeralal PW-1 is of no worth and does not support prosecution at all. 12. Mukesh Khatik PW-3 is the only witness of the name of Mukesh, who relates to Ex. 2 Fard Panchayatnama, Ex. 2 Fard Supurdgi Lash and Ex. 8 seizure of the wearings of the deceased and nothing of that kind has come from the evidence of this witness that he ever accompanied Heeralal, when deceased was shot at in the market. 13. Rajendra Kumar PW-2 is also a witness of Ex. 2, 3 and 8, i.e. Fard Panchayatnama, Fard Supurdgi Lash and seizure of wearings of the deceased. 14. Jahid PW-4, a sole eye-witness of the incident has not supported the prosecution and after turning hostile, he has turned down the story of the prosecution and narrations of his statements rather makes the prosecution version suspicious and not worthy to be accepted because a sole eye-witness to the incident has said that the assailants were unknown to him and their appearance was alike and akin to the habitants of Bihar and U.P. and has also said that he does not know, the accused involved in the firing and has also said that the accused persons present in the court were not involved in the incident of said shooting. 15. Sunita Keer PW-5, widow of deceased, has said that before two years back, at about 3-4 in the day, she was at home when Jahid came and said to her husband that door was to be brought, so they went on the scooter to Patel Circle and has also said that at the time of the alleged shooting, she, her husband and his mother were there on the spot but assessment of other evidence, does not disclose that anybody from the family of the deceased was there at the place of occurrence. 16. Heeralal PW-1 has said that Jahid had come to fetch his brother Mangilal at 11.30 in the day and timings of visit of Jahid to Mangilal also varies in the evidence of both these witnesses, which cast a shadow of doubt, on the verity of the evidence. 17. Sunita Keer PW-5 has also said that her brother-in-law (Heeralal) apprised that he was informed by Jahid in respect of the incident. 17. Sunita Keer PW-5 has also said that her brother-in-law (Heeralal) apprised that he was informed by Jahid in respect of the incident. She has also said that on the place of occurrence, she had heard that types of the assailants involved, which was being talked-of, was akin and alike habitants of U.P. and Bihar and this kind of utterance from the mouth of Sunita Keer, widow of the deceased, rather matches with the version of Jahid, an eye witness of the incident since Jahid too has asserted guise and appearance of the assailants similar to her say. 18. Ummaid Singh PW-6 is a police cop, who has said that on 18.09.2008, he was a Constable at Police Chowki, Surajpole and a pistol was seized vide Ex. 12 before him and two cartridges were also sealed vide Ex. 13, but this witness is not an independent witness and belongs to police department, who was posted at Surajpole Outpost, both the independent witnesses of the recovery have not supported that version, which has been narrated by this witness, so recovery of the said weapon cannot be said to be believable and version of this witness does not support recovery in the above discussed and in the given situation. 19. Shehzad Khan PW-9 is a witness of Ex. 18, seizure of scooter and Naresh PW-10 is witness of Ex. 4, 5, 6, 7, and 9 has become hostile and has turned down the said recoveries and he has observed that at Patel Circle, police had conducted proceedings and a map was drawn and blood was taken but nothing else was found on the spot, so this say of witness Naresh, falsifies alleged recovery of rimless cover of the alleged fired cartridge, allegedly recovered from the place of occurrence by the police. He has made startling utterances in his cross-examination that he had gone there for getting service of his vehicle done, policemen were there, so he gone there to witness and on his query, the police cops informed him that a chap of Keer Caste was shot at by motorcycle borne two assailants of Bihar, which is akin to the version as made by Jahid and widow of the deceased that the assailants were akin to U.P. and Bihar habitants, which weakens the story of the prosecution that accused-appellants were indulged in the incident, because guise and appearance of the assailants is stated to be akin to inhabitants of Bihar and U.P. by so many witnesses of prosecution, which would obviously be dispelling involvement of accused-appellants because of their disparity of guise and appearance being resident of Udaipur of Rajasthan. 20. Dr. Akhilesh Sharma PW-11 is a Medical Jurist, who conducted postmortem on the body of the deceased, he has said that the deceased was admitted in the neuro-surgery ward as an unknown person on 14.09.2008 prior to his death and before his demise X-rays of his head and neck were taken and has said that on postmortem, two bullet injuries were found; one of entry and another of exit and the infliction of bullet entry comprises of 2 cm X 2 cm shaping cross and the place of injury has been said to be 1 cm. exterior to the right eye upward, 6 1/2 cm away from the right ear bregas and pertaining to exit of the bullet injury it has been said that it was of 1.5 cm X 1.5 cm almost round in shape towards left of the head away from left eye posterior and has delineated the infliction caused inside and has said that the medical board had found and opined that the cause of his death was due to head injury and coma, the injury was inflicted by fire arm and was sufficient to cause death. He has said that postmortem report Ex. 19 was in his hand-writing, which bears his signature from A to B; Dr. K.L. Dhanak's signature from C to D and E to F signature of Dr. Ajay Pal Singh. In his cross-examination, he has said that according to Ex. 19 postmortem report, the subject was admitted on 14.09.2008 in neuro-surgery ward at 3.30 as unknown and he died at 4.15. K.L. Dhanak's signature from C to D and E to F signature of Dr. Ajay Pal Singh. In his cross-examination, he has said that according to Ex. 19 postmortem report, the subject was admitted on 14.09.2008 in neuro-surgery ward at 3.30 as unknown and he died at 4.15. He has further said that prior to preparation of Ex. P/19, he had gone through by the admission ticket and related documents of the deceased and admission ticket is stated to be EX.P/2 and Ex. P/3. He has also said that he is not capable to say the nature of the fire arm causing injury. 21. Satyanarayan PW-12 is a Head Constable. He has said that on 14.09.2008 he was posted as Malkhana Incharge at Suragpole Thana and S.I. Dalpat Singh Ji deposited A, B, C and D sealed packets of Case No. 274/2008 under Section of 302 of IPC, which were kept in the malkhana and on 15.09.2008 Dalpat Singh Ji had deposited two scooters, one LML and one Bajaj Super, which were entered in malkhana register. Subsequently, on 18.09.2008, S.I. Dalpat Singh Ji deposited 5 packets E, F, G, H and I, which too were kept secured in the malkhana. He has further said that on 24.09.2008, 8 sealed packets A, B, C, D, E, G, I and K were given to Constable to Ashok Kumar for depositing in FSL, Udaipur and FSL, Jaipur, which were deposited by the Constable on 28.09.2008 in Udaipur and Jaipur FSL, out of which A, B, C, K and I, 5 articles were deposited in FSL, Jaipur and three packets marked D, E and G were deposited in FSL, Jaipur under receipts, which were submitted to him and the same was entered in the malkhana register. Ex. 20 has been said to be malkhana register and Ex. 28 its replica. 22. Ashok Kumar PW-13, a Constable has said that he was posted at Surajpole Thana on 23.09.2008 and after getting 8 articles, he went to S.P. Office and got paper prepared then came to Thana and got his entry done and deposited the same in malkhana. Next day, the articles were again obtained and he went to Udaipur FSL, where five articles were deposited under receipt and same day he left for FSL, Jaipur, where three articles were deposited. Forwarding letter of S.P. Office are Ex. Next day, the articles were again obtained and he went to Udaipur FSL, where five articles were deposited under receipt and same day he left for FSL, Jaipur, where three articles were deposited. Forwarding letter of S.P. Office are Ex. P/21 and P/22, which bears his signature and receipt of FSL, Udaipur is Ex. 23 and receipt of FSL, Jaipur is Ex. 24. He has also said that during the course of his possession, articles remained sealed and secured. He has also said that due to over occupation and official work, the receipts were deposited on 28.09.2008 and has declined that the articles were not rendered to him in secured and sealed condition. 23. Wazir Khan PW-14 has accepted his signature on Ex. P/25, but has declined about the nature of the proceedings and has turned hostile and has further said in his cross-examination that it is wrong that Mubarak Hussain would have delivered papers of scooter before him and he never went to police station with father of Mukhtiyar and had signed the papers at home. 24. Likewise, Sheetal Sanadya PW-16 has turned hostile and has said that Scooter No. RJ 27M 0731 belonged to him, which was sold to Mukhtiyar on 29.11.2006 and all the papers were delivered to him after completion and has admitted his signature on Ex. P/31 but has said that C to D script is not written in his hand-writing. He has further said that he knows Mukhtiyar and has said that after alienation of the said scooter, he never met with Mukhtiyar nor any dialogue occurred and has said that he did not know as to who was plying the scooter at the time of the said incident and has also said that on the advice of police, he had signed Ex. 31 and he did not read it nor it was read over to him and it was not in his notice that whether scooter was there at the place of occurrence or not but on the say of police he was uttering alike. 25. Madho Singh PW-18 is SHO, PS Surajpole, who has said that police statements of certain witnesses were reduced into writing by him and further rendering the diary to Nazir Khan, S.I. He has also said that after investigation, the diary was returned back to him and he had submitted charge-sheet in the court. 26. 25. Madho Singh PW-18 is SHO, PS Surajpole, who has said that police statements of certain witnesses were reduced into writing by him and further rendering the diary to Nazir Khan, S.I. He has also said that after investigation, the diary was returned back to him and he had submitted charge-sheet in the court. 26. Nazir Khan PW-19, S.I. has narrated sequence and mode of investigation conducted by him and has ratified Ex. P/32, P/31, P/252, P/33 and P/34 and this witness has remained an investigator for a period of time and has not thoroughly investigated the matter, which has been further done by Dalpat Singh PW-21. In cross-examination, it has been admitted by this witness that case, which was between the parties relating to Ex. P/33, was compromised between accused and deceased and this fact had emerged in the investigation. 27. Vikram Singh PW-20 is a Constable who has admitted his signatures on Ex. P/14 spot verification memo, Ex. P/15 arrest memo of accused Junaid, Ex. P/32 seizure of scooter and Ex. P/33 arrest memo of Mukhtiyar, in his cross-examination he has said that he cannot say as to when the spot of occurrence was indicated and verified by the accused persons. He has also said that the spot of occurrence was a public way, where masses were passing in magnitude. 28. Dalpat Singh PW-21 is the main Investigating Officer and SHO of PS Surajpole. Evidence of this witness is very important, he has said that on 14.09.2008 he was posted at P.S. Surajpole as Second Officer, his duty was there at Kishanpole Crossing with force because Anant Chaturdashi was being observed on that day, at about 3.00 in the noon, a passer-bye, while crossing on motorcycle, informed him that an individual was lying on Patel Circle with blood oozing from his head, so he went there along with police force because Patel Circle was nearby. A person was lying flat on the road, injury was visible on his head, blood was scattered there, he was breathing, so he called a tempo and after putting him into that, injured was carried to Maharana Bhupal Hospital, where he died during the course of treatment. He has corroborated Ex. P/34, 1, 9, 4, 5, 6, 7, 2, 8, 3, 32, 18, 13, 17, 14, 39, 40, 41, 42 and 43 relating to the investigation. He has corroborated Ex. P/34, 1, 9, 4, 5, 6, 7, 2, 8, 3, 32, 18, 13, 17, 14, 39, 40, 41, 42 and 43 relating to the investigation. Regarding recovery of weapon and cartridge, this witness has said that on the instance of Junaid pistol was recovered but how it was recovered, where it was kept, whether it was in open or a locked closet, nothing has been narrated on this count, whereas regarding recovery of cartridge from Mukhtiyar as recited in recovery memo, it has been said that the same were got recovered by him after opening lock of a bag (peti), he produced the same. If we peruse the recovery memo of the weapon Ex. P/12, then it emerges that the pistol was also recited to have been given after opening a lock from a peti and key of that lock was also seized. So, this much anomaly is there, in the evidence of this witness on the point of recovery, which has obviously been discarded by one of the recovery witness and another one has denied its lawful sealing on the spot by saying that the same were kept in the pocket by police authorities, which has already been discussed because the said irregularity has maligned whole of the prosecution story by causing significant infirmity, which tarnishes the recovery and makes it inadmissible. 29. An important utterance by this Investigating Officer has been made in his cross-examination that it is correct that the name and address of the injured could not be known at the place of occurrence and brother of deceased Heeralal did not meet him at the place of occurrence and has also said that it is correct that vide Ex. P/2 he had admitted injured as "unknown". He has also said that he had seen Heeralal, brother of the deceased, in the hospital for the first time and Heeralal, brother of the deceased, had rendered information which was registered at 5.45 and by that time of lodging the information, he had given his identification and identified the deceased as well, he has also said that he cannot assign the reason, wherefore, motbirs were taken of other thana area and not of that thana circle. He has further said that the place of occurrence was a public way, which is used for movement of vehicles and "empty cover" of cartridge was recovered at 6.25 p.m., but a surprising utterance has been made by this witness that even by that time, "cartridge case" was not found crumbled and crushed. This aspect is also bit amazing that how a metal empty cover of cartridge could remain, as it is, after hours together from a very busy road near Surajpole of Udaipur, which is termed to be a pretty busy area having vehicular and other kind of multiple to and fro movements. It has also been said by this witness that "cartridge case" as kept in Article 1 was not live but was empty though live cartridges were sent to FSL and after examination "cartridge case" and "rest of the rim" of pallet, were sent back separately, but no explanation to this aspect has been tendered by the FSL or an authority of the laboratory as to why both were disintegrated. One another unbelievable utterance has also been made by this witness that at the time of their arrest, both were found wandering separately, which too is doubtful. It is pertinent to mention that documents relating to Ex. P/12 and Ex. P/13 (recovery of pistol and live cartridges) Ex. P/16 and Ex. P/17 (spot maps of recoveries) have been written and drawn by a separate pen and hand-writing, whereas "time" mentioned on all these exhibits is written by a separate distinguishable pen, which has beleaguered the veracity of these documents. 30. PW-22 is a witness of Ex. P/4, 5, 6, 7 and 9 and he has narrated his signatures on these papers, but in his cross-examination, he has been averred that he did not read these papers nor those were read over to him prior to his signatures and has also said that what was written in the memos and documents was unknown to him. 31. Both the appellants-accused have explained in their examination under Section 313 of Cr.P.C. by saying that they have been falsely framed and they were not nurturing animosity with deceased Mangilal. The cases earlier subjudice were settled and compromised and nothing was recovered from them and they were entangled on sheer suspicion, their signatures were taken under duress. 32. 31. Both the appellants-accused have explained in their examination under Section 313 of Cr.P.C. by saying that they have been falsely framed and they were not nurturing animosity with deceased Mangilal. The cases earlier subjudice were settled and compromised and nothing was recovered from them and they were entangled on sheer suspicion, their signatures were taken under duress. 32. Assessment and deliberation of the above and appreciation of evidence adduced, develop a distorting story of the prosecution. It is paramount under the criminal jurisprudence that the accused must be connected with the crime beyond all probabilities of doubt with positive and reliable evidence. 33. Solo, sole eye-witness of this case Jahid has turned hostile and has not supported the version of the prosecution. Jahid as well as two of other witnesses as discussed above have explicitly uttered that "guise and appearance" of the accused involved, were resembling to the habitants akin to U.P. and Bihar. Jahid has categorically said that Mukhtiyar and Junaid were not involved in the said incident. 34. Recovery of the alleged weapon and bullets is of trivial value because one of the recovery witness has turned hostile and discarded the recovery and another one has clearly said that the alleged weapon was not sealed on the place of recovery and was kept in the pocket by the recovering police authorities, which has manifestly beleaguered, the recoveries of the alleged pistol. Moreover, the caliber of weapon is also not divulged in the recovery memo as to what was the bore of the pistol recovered, how a "rimless cover" of bullet remained uncrushed or untouched on a busy public way of Udaipur, where individuals and vehicular movements is very high, also makes the recovery of the alleged cover of bullet from the place of occurrence, dubious. 35. The version taken support of in the first information report does not match with the other evidence of the prosecution. 35. The version taken support of in the first information report does not match with the other evidence of the prosecution. Heeralal, complainant and his mother have tried to introduce themselves to be eye-witnesses and Heeralal has even said that he witnessed both the alleged accused persons coming in a hurried position on LML Scooter from the side of the occurrence and the place of witnessing them has been said to be near the venue, his narration is that he found his brother under pangs of agony of fire injury on public way in breathing estate but he did not go near to him nor rendered any support and even did not take him to the near hospital but came back to home, which is quite unnatural to be believed because normally in event a person detecting his real brother lying on a public place with a bullet injury, will certainly go to him and help him and further carry him to a nearby hospital but nothing of that kind has been maneuvered by Heeralal. 36. It is an established legal position that the prosecution is under compulsion to prove its case beyond the domain of reasonable doubt, which is obviously not there in the case under hand and so many doubts, non-corroborations and contradictions are there, which have been deliberated and pondered and elucidated earlier. On the basis of the above enumeration, it is suffice to conclude that a serious doubt has arisen on the culpability and involvement of accused in the crime. In the case of Sukliya v. State of Madhya Pradesh reported in (2010) 16 SCC 745, the Hon'ble Apex Court has held as under :- "6. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other therefore his innocence, the view which is favourable to the accused should be adopted". In Narendra Singh and Another v. State of M.P., (2004) 10 SCC 699 , the Hon'ble Apex Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'. 31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of Haryana and Shailendra Pratap v. State of U.P.) which had not been adhered to by the High Court. Xxx xxx xxx xxx xxx 33. We, thus, having regard to the postmortem report, are of the opinion that the cause of death of Bimla Bai although is shrouded in mistery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld." Thus, it appears to be just and fair to hold that the accused-appellants are entitled to get benefit of doubt and be acquitted from the charge. Consequently, instant appeal is hereby allowed. As such, the impugned judgment of the learned trial court is hereby quashed and set aside, extending benefit of doubt, both the accused are acquitted from the charge levelled against them of Section 302 and 302/34 of IPC. So, they be released forthwith unless their custody is needed in any other matter. Consequently, instant appeal is hereby allowed. As such, the impugned judgment of the learned trial court is hereby quashed and set aside, extending benefit of doubt, both the accused are acquitted from the charge levelled against them of Section 302 and 302/34 of IPC. So, they be released forthwith unless their custody is needed in any other matter. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are directed to forthwith furnish a personal bond in the sum of Rs. 25,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.