JUDGMENT : Ram Jeet @ Radhy Shyam and Apporva Sarkar were tried by the court of Additional Sessions Judge (Fast Track) No.2, Bundi for causing murder of Satya Narayan, husband of Mousmi Bai (P.W.2). 2. As per the charges formulated, the case of the prosecution is that on 23.2.2006, at about 10:00 PM, in the revenue state of Mauja Andhora, Ram Jeet @ Radhy Shyam had fired shot resulting into death of Satya Narayan and injury to Heera Lal (P.W.1). It is further case of the prosecution that Ram Jeet @ Radhy Shyam had murdered Satya Narayan at the instance of Apoorva Sarkar. The court of Additional Sessions Judge (Fast Track) No.2, Bundi, relying upon the testimony of the witnesses, convicted the accused appellant Ram Jeet @ Radhy Shyam for the offence under Section 302 and 307 IPC and Section 3/25 of Arms Act. The trial court acquitted Ram Jeet @ Radhy Shyam for the offence under Sections 120 and 109 IPC. The trial court also came to the conclusion that the prosecution has failed to prove on record that Ram Jeet @ Radhy Shyam had committed murder of Satya Narayan at the behest of Apoorva Sarkar and thus, acquitted Apoorva Sarkar of offence under Sections 120-B/302, 120-B/307 and 109 IPC. The trial court having convicted the appellant Ram Jeet @ Radhy Shyam for the above offences, vide a separate order of even date sentenced him as under:- U/s. 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 3,000/-, in default of payment of fine to further undergo three months additional S.I. U/s. 307 IPC- to undergo four years R.I. and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month S.I. U/s. 3/25 Arms Act- to undergo six months S.I. and to pay a fine of Rs. 2,50/-, in default of payment of fine to further undergo one month additional S.I. 3. Ram Jeet @ Radhy Shyam aggrieved against his conviction, has filed D.B. Criminal Appeal No. 2/2007, whereas the State of Rajasthan to assail the acquittal of Apoorva Sarkar has preferred D.B. Criminal Appeal No. 1412/2007. Mousmi Bai (P.W.2) has also filed D.B. Criminal Revision Petition No. 135/2007 against the acquittal of Apoorva Sarkar. Ram Jeet @ Radhy Shyam aggrieved against his conviction, has filed D.B. Criminal Appeal No. 2/2007, whereas the State of Rajasthan to assail the acquittal of Apoorva Sarkar has preferred D.B. Criminal Appeal No. 1412/2007. Mousmi Bai (P.W.2) has also filed D.B. Criminal Revision Petition No. 135/2007 against the acquittal of Apoorva Sarkar. Since both the appeals filed and the revision preferred by the complainant, assail the common judgment, we shall decide both the appeals and revision petition together. 4. The prosecution case was set into motion on the basis of written report (Exhibit-P/1) presented by Heera Lal (P.W.1) before Rishi Raj (P.W.21) S.I., who was then posted as SHO, Police Station Indragarh. The written report (Exhibit-P/1) when translated into English reads as under:- "To Station House Officer, Police Station Indragarh (Bundi). Sub. Regarding murderous assault committed. Sir, It is submitted that today on 23.2.2006, in the night at about 10:00 PM, I and Satya Narayan Bairwa were going to our fields to guard our cattle. Satya Narayan was having torch in his hands. Suddenly, we heard noise from the bushes at Andhora. Satya Narayan threw light from torch towards bushes from where the noise was coming. One person who was hiding in the bushes fired at both of us. The pellets hit Satya Narayan on his hand and other parts of the body. One pellet hit me on my right armpit. Satya Narayan Bairwa due to injuries fell on the ground. The person who fired shots was nut-brown (Sanwala) in colour. He fled away from the spot. After hearing noise of gun shots, residents of village Devpura were also attracted at the spot. I have come to present the report. Report be registered. Sd/- Heera Lal s/o Khana by caste Gurjar, r/o Devpura." 5. After registration of the case, charge-sheet was filed, accused were sent for trial. As already stated, charges were framed against the appellant and acquitted accused Apporva Sarkar to whom witnesses in evidence has named as Bangali Doctor. Accused denied the charges. The prosecution commenced evidence and in all had examined twenty-two witnesses. Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. The accused had not examined any witness in defence. Heera Lal (P.W.1) had received injury in the occurrence. 6. Dr. Accused denied the charges. The prosecution commenced evidence and in all had examined twenty-two witnesses. Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. The accused had not examined any witness in defence. Heera Lal (P.W.1) had received injury in the occurrence. 6. Dr. Avinash Sharma (P.W.17) on 23.2.2006 being posted as Medical Officer, Primary Health Center, Sumerganj Mandi, Bundi, had examined Heera Lal (P.W.1) at 11:15 PM. As per injury report (ExhibitP/24), he had noted following two injuries on the person of Heera Lal: "(i) Laceration, 1cm x ½ cm, entrance of wound oozing blood, on abdomen, right side upper side, skin invisible, gun shot injury. (ii) Laceration, 1½ cm x 1½ cm, on exit wound oozing blood, on chest lower side of right side, gun shot injury" 7. Dr. O.P. Sharma (P.W.15) on 24.2.2006, conducted autopsy on the dead body of Satya Narayan being member of Board along with other two doctors. He had found seven injuries on the person of Satya Narayan which were caused by fire arm. 8. Since the accused was not named in the FIR, identification parade was conducted in the jail. Mahendra Kumar Dabhi (P.W.16) who was then posted as Additional Civil Judge cum Judicial Magistrate, First Class, Bundi on 13.4.2006 on the direction issued by Chief Judicial Magistrate, Bundi had conducted identification proceedings in the jail. The accused Ram Jeet @ Radhy Shyam was identified by Heera Lal (P.W.1), Mousmi Bai (P.W.2) and Ramphool (P.W.3) brother of the deceased Satya Narayan. 9. The only question raised before us is whether accused was identified at the spot as an assailant and the prosecution has established identity of the appellant as the one who had caused the injuries in the occurrence or not. 10. As per the written report (Exhibit-P/1), the occurrence had taken place on 23.2.2006 at 10:00 PM. The written report was presented on 10:40 PM and at the said time, case was also registered. The special report reached Judicial Magistrate, First Class, Indragarh on 24.2.2006 at 9:00 PM. Thus, in the present case, the special report has reached the Illaqa Magistrate after 23 hours of the registration of the case, though the Police Station Indragarh and residence of Judicial Magistrate, First Class, Indragarh are situated in same small town. 11. The special report reached Judicial Magistrate, First Class, Indragarh on 24.2.2006 at 9:00 PM. Thus, in the present case, the special report has reached the Illaqa Magistrate after 23 hours of the registration of the case, though the Police Station Indragarh and residence of Judicial Magistrate, First Class, Indragarh are situated in same small town. 11. It will be pertinent to highlight that in the written report Exhibit-P/1, accused has not been named and except Heera Lal (P.W.1) no other witness has been named. Furthermore, in the said report neither the accused has been named nor his description has been given except to state that accused was of nut-brown (Sanwala) colour. The occurrence had taken place in the month of February, 2006, which is a cold season. It is further case of the prosecution that the accused was identified in the torch light which was in the hands of Satya Narayan. The accused was behind the bushes and after the shots had hit Satya Narayan, he had fallen on the ground. Thereafter, the accused ran away from the spot. It is not the case in the written report that when accused decamped from the spot, he was seen by Heera Lal (P.W.1) while torch was lying fallen on the ground. 12. Heera Lal (P.W.1) in the court stated that he was carrying a jute bag on his head. He was going towards the village. When he reached near village, he saw one man hiding behind the bushes. Satya Narayan was present at the well. This witness informed Satya Narayan that his guests is sitting in the bushes. Satya Narayan replied that nobody is his guests. Then Satya Narayan flashed torch light towards the bushes. The man who was hiding asked him not to flash the torch light. The said man was armed with single bore gun. At that time, Mogiya fired the shot which hit Satya Narayan's shoulder. This witness suffered injuries on his ribs. Satya Narayan was injured at the spot. On the noise raised, his wife Mousmi Bai came and carried Satya Narayan on his shoulder to village Devpura. On the noise raised by Heera Lal (P.W.1), people gathered there. In examination-in-chief, Heera Lal (P.W.1) stated that he has named accused Mogiya in the FIR. This witness suffered injuries on his ribs. Satya Narayan was injured at the spot. On the noise raised, his wife Mousmi Bai came and carried Satya Narayan on his shoulder to village Devpura. On the noise raised by Heera Lal (P.W.1), people gathered there. In examination-in-chief, Heera Lal (P.W.1) stated that he has named accused Mogiya in the FIR. In cross-examination, this witness admitted that it was a dark night and where the Mogiya was concealing himself, there were bushes and it was jungle. It will be pertinent to reproduce the exact lines from the cross-examination of Heera Lal (P.W.1) as under:- " ;g crk lgh gS fd jkr vU/ksjh Fkh ,oa dqN Hkh utj ugha vk jgk FkkA ;g ckr lgh gS fd tgkWa ij eksafx;k fNik gqvk djrk Fkk] ogka ij >kfM+;kWa ,oa taxy ySA ;g eq>s irk ugha fd fdrus ch?kk dk [ksr gS] fdldk [ksr gSA " 13. Heera Lal (P.W.1) stated in his written report (Exhibit-P/1) that he had named Mogiya as one who was concealing himself in the bushes of village Andhora. As to why same is not written in the written report (Exhibit-P/1), this witness could not give any explanation. This witness also stated that he had also told Satya Narayan that his guest has come and as to why this fact is not mentioned in the written report (Exhibit-P/1), he could not give any explanation. This witness stated that accused was armed with single bore gun, as to why he has not specified the same in the written report, he could not give any explanation. The exact words in cross-examination of the witness are as under:- " ;g fjiksVZ Fkkusnkj lkgc fj"khjkt th us fy[kh FkhA tks izn'kZ ih&1 gSA eSaus izn'kZ ih&1 ,oa izn'kZ Mh&1 esa eqyfte eksafx;k dk v.k/kksjk ds taxy esa >kfM+;ksa ds ihNs fNik gksuk fy[kk fn;k Fkk] ;fn ugha fy[kk gks rks irk ugha gSA eSaus lR;ukjk;.k ls eksaxh;k dgdj dgk gS fd rqEgkjs ;gka esgeku vk;k gS D;k\ ;g ekasfx;k fNik gqvk gS] ;fn ;g ckr ugha fy[kh gks rks irk ugha gSA izn'kZ ih&1 ,oa izn'kZ Mh&1 esa eksafx;k ds ikl ,d ukyh cUnwd gksus dh ckr fy[kh nh Fkh] blesa D;ksa ugha fy[kh eSa ugha crk ldrkA ;g ckr lgh gS fd lR;ukjk;.k esjs lkFk ugha Fkk] og vius dqvs ij FkkA " 14. Heera Lal (P.W.1) further stated that Mogiya was detained at the police station. He was detained in a room. This witness further stated that he had gone in the jail to identify the accused after one month. He had gone to the police station 3-4 times and he had seen the accused once or twice. It will be apposite here to reproduce the following lines from the cross-examination of the witness, as under:- " ;g ckr lgh gS fd eSaus eksafx;k dks taxy esa igpku fy;k Fkk eSaus lcls dgk fd ;g eksafx;k gS] eSa bldks tkurk gwWaA eSaus eksafx;k dks ogka ij MkVk Fkk] yM+k ugha FkkA eSa tsy esa ,d ekg ckn x;k FkkA eq>s iqfyl esa rhu pkj ckj tkuk iM+kA " 15. Heera Lal (P.W.1) stated that he knew the accused earlier. If that so, he ought to have named the accused in the FIR. 16. Delay in reaching of the special report assume importance in view of the following admission made by the witness in his cross-examiantion: " Fkkusnkj lkgc us eq>ls dgk fd ;g fjiksVZ gS] bl ij vkt vaxwBk dj nks] rks eSaus vaxwBk dj fn;kA ml oDr jkethr ,oa caxkyh MkWDVj dks Fkkus ij fcBk j[kk FkkA " 17. Heera Lal (P.W.1) stated that the Investigating Officer (Thanedar Saheb) had taken his signatures on the written report. At that time, accused and Bangali Doctor were sitting in the police station. 18. In view of above, we have no hesitation to hold that first accused were apprehended and on the next date, the written report (Exhibit-P/1) was prepared by the police and since police was not sure about the name of the accused, investigation to that extent was kept pending and open. Heera Lal (P.W.1) further stated that it is correct that the police was not able to find the name of the appellant Ram Jeet @ Radhy Shyam and he is not aware from where police had arrested the accused. " ;g ckr lgh gS fd iqfyl okyksa dks xksyh pykus okyksa dk uke ugha py jgk FkkA iqfyl eksafx;k dks dgka ls idM+dj yk;h] eq>dks bl ckr dk irk ugha gSA " 19. Heera Lal (P.W.1) further stated that he had not seen the accused firing shots. 20. " ;g ckr lgh gS fd iqfyl okyksa dks xksyh pykus okyksa dk uke ugha py jgk FkkA iqfyl eksafx;k dks dgka ls idM+dj yk;h] eq>dks bl ckr dk irk ugha gSA " 19. Heera Lal (P.W.1) further stated that he had not seen the accused firing shots. 20. In view of the fact that the accused was not named, there was delay in reaching the special report and before lodging the written report (Exhibit-P/1), the accused was in police custody, we are convinced that no reliance upon the testimony of Heera Lal (P.W.1), can be placed even though he was injured, qua the identity of the accused. 21. Mousmi Bai (P.W.2) wife of the deceased Satya Narayan, has been introduced as eyewitness. She was not named in the written report (Exhibit-P/1) or FIR Exhbit-P/27, as an eyewitness of the occurrence. This witness admitted in the cross-examination that Ramphool (P.W.3) is elder brother of her husband and he do Netagiri and he was having inimical relations with the accused. Mousmi Bai (P.W.2) widow of Satya Narayan stated as under: " ;g ckr lgh gS fd jkeQwy esjs tsB gS ,oa usrkfxjh djrk gSA ;g ckr lgh gS fd jkeiky th dh otg ls gekjs nq'euh gks jgh gSA " 22. Mousmi Bai (P.W.2) further referring to Bangali Doctor i.e. Apoorva Sarkar stated that he was arrested on the same day. This witness further stated that after the accused were arrested, she along with Ramphool (P.W.3) elder brother of her husband had gone to the court. This witness further stated that when she had gone to make statement to the police station, the accused were in police custody. This witness had seen Ram Jeet @ Radhy Shyam at that time. This witness further admitted to be correct that police had taken photographs of the accused. The exact words stated by the witness are as under:- " ;g ckr lgh gS fd eqyfteku dks idM+us ds ckn eSa] jkeQwy esjs tsB vnkyr x;s FksA ;g ckr lgh gS fd tc eSa Fkkus ij c;ku nsus x;h rc eqyfteku Fkkus esa can Fksa ml oDr eSaus jkethr dks ns[kk FkkA ;g ckr lgh gS fd Fkkus ij eqyfteku ds QksVksa [ksaps FksA " 23. The statement of Mousmi Bai (P.W.2) was recorded under Section 161 Cr.P.C. on 28.2.2006. The statement of Mousmi Bai (P.W.2) was recorded under Section 161 Cr.P.C. on 28.2.2006. Therefore, on that day, she had seen the accused Ram Jeet @ Radhy Shyam in the police custody. Thus, identification proceedings carried on 13.4.2006, by Mahendra Kumar Dabhi (P.W.16) are not of much significance. The photographs of the accused were taken in the police station. The accused were shown to the witness in the police station. Therefore, identification cannot be taken as a corroborative piece of evidence. 24. Similarly, as per admission made by Mousmi Bai (P.W.2), Ramphool (P.W.3) elder brother of deceased Satya Narayan had seen the accused in the police station before Test Identification Parade was carried. Ramphool (P.W.3) was also not named as eyewitness in the FIR. He has been later introduced as eyewitness. Thus, we exclude the testimony of Mousmi Bai (P.W.2) and Ramphool (P.W.3) from consideration. 25. Ramprasad (P.W.4) stated that when Satya Narayan was taken for medical check-up, Satya Narayan informed him that shot had been fired at the instance of Bangali Doctor. This piece of evidence is relied as oral dying declaration. 26. A perusal of the injuries No. 6 and 7 reveals that there was hemorrhagic fluid in pleural cavity, right lower lung was damaged due to gun shot injury. We have our doubts whether deceased Satya Narayan could speak to Ramprasad (P.W.4) and make a dying declaration to Ramprasad (P.W.4). Even if we believe so, the deceased Satya Narayan had only expressed his suspicion that the shot has been fired at the instance of Bangali Doctor. The prosecution except to raise suspicion by examining witnesses who stated that Ram Jeet @ Radhy Shyam had fired shot at the behest of accused Apoorva Sarkar has led no evidence to substantiate their suspicion. 27. Dhapu Bai (P.W.5), mother of the deceased Satya Narayan stated that they were having old enmity with Bangali Doctor. Enmity is double edged weapon. It cannot be ruled out that due to enmity, Apoorva Sarkar has been named as accused. 28. No evidence has been led by the prosecution to infer that Ram Jeet @ Radhy Shyam had meet Apoorva Sarkar or they have acted in concerned or had conspired together. There is no evidence to connect Apoorva Sarkar with crime and therefore, we cannot set aside the acquittal of Apoorva Sarkar, which has been rightly recorded by the trial court. 29. There is no evidence to connect Apoorva Sarkar with crime and therefore, we cannot set aside the acquittal of Apoorva Sarkar, which has been rightly recorded by the trial court. 29. We have already held that the prosecution has miserably failed to prove identity of the accused Ram Jeet @ Radhy Shyam as the one who had fired the shots. 30. As a result of above discussion and facts and circumstances enumerated by us, we accept the D.B. Criminal Appeal No. 2/2007 preferred by Ram Jeet @ Radhy Shyam by setting aside his conviction and sentence. We acquit him of the charges formulated. We also dismiss the D.B. Criminal Appeal No. 1412/2007 preferred by the State of Rajasthan to challenge the acquittal of Apoorva Sarkar. For the same reasons, we also dismiss the D.B. Criminal Revision Petition No. 135/2007 filed by Mousmi Bai, wife of the deceased Satya Narayan to assail the acquittal of Apoorva Sarkar. 31. In view of the acceptance of D.B. Criminal Appeal No. 2/2007, in above terms, we order that the appellant Ram Jeet @ Radhy Shyam be released forthwith, if in custody and not required in any other case. 32. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants Ram Jeet @ Radhy Shyam is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Supreme Court.