JUDGMENT : Mohammad Rafiq, J. 1. All these appeals are directed against common judgment dated 16.03.2012 passed by the Court of Special Judge (Sati Niwaran), Rajasthan, Jaipur and Additional Sessions Judge, Jaipur City, Jaipur (for short ‘the trial court’) whereby the said court, while granting pardon to accused Luvkush Lamba of the charges for offences under Sections 120-B, 302 read with Section 120-B IPC, convicted and sentenced the accused-appellants in the manner indicated below: Name of accused Section Sentence (1) Sanjay Jain @ Nawab (2) Rajendra Kumar Jain 302 read with Section 120-B IPC Life imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo six months additional rigorous imprisonment. (1) Ghanshyam Yadav (2) Sonu Yadav @ Prem Chand Yadav 302 IPC Life imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo six months additional rigorous imprisonment. (1) Sanjay Jain @ Nawab (2) Rajendra Kumar Jain (3) Ghanshyam Yadav (4) Sonu Yadav @ Prem Chand Yadav 120-B IPC Life imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo six months additional rigorous imprisonment. (1) Sanjay Jain @ Nawab (2) Rajendra Kumar Jain (3) Ghanshyam Yadav (4) Sonu Yadav @ Prem Chand Yadav 3/25 Arms Act Three years rigorous imprisonment with fine of Rs. 500/-, in default of payment of fine to further undergo three months additional rigorous imprisonment. 2. All the sentences were ordered to run concurrently. 3. Skeletal facts of the case essential to be noticed are that FIR No. 139/2005 (Exhibit P-49) was registered with Police Station Transport Nagar, Jaipur for offence under Section 307 of the Indian Penal Code (for short ‘IPC’) on the basis of entry no. 1315 made in rojnamcha (Exhibit P-3A) at 11.20 A.M. on 22.06.2005 to the effect that one Mahendra Kumar Jain (P.W.4) informed duty officer Gusairam (P.W.1), Assistant Sub Inspector in the Police Station that a person has been seriously injured by firearm by another person near Jain Temple of Sethi Colony. Gusairam ASI, Birbal Head Constable-1708 and Chandra Pal Constable-376 reached at the spot. They telephonically informed SHO, Police Station Transport Nagar, Jaipur from there about the incident, who too reached the place of incident. An Indica Car bearing No. RJ-14 8C 9983 was parked in front of the Jain Temple. A person was lying in injured condition near the car. Gusairam ASI, Birbal Head Constable-1708 and Chandra Pal Constable-376 reached at the spot. They telephonically informed SHO, Police Station Transport Nagar, Jaipur from there about the incident, who too reached the place of incident. An Indica Car bearing No. RJ-14 8C 9983 was parked in front of the Jain Temple. A person was lying in injured condition near the car. He was profusely bleeding from head and was not in a position to talk. Injured was immediately rushed to SMS Hospital, Jaipur. Rajendra Prasad (P.W.6) Constable-296 of IVth Battalion of RAC was present there, who informed that the injured was fired at by a young boy when he (injured) was coming out of the temple and was about to board the car. He (injured) at that time suddenly received a call on his cell phone. A person, who had a pistol in his hand fired at his head from a very close range. On receiving firearm injury, he fell down. The boy, who had opened fire, ran away from the place of incident and while running, he threw away the pistol near the car itself. Rajendra Prasad (P.W.6) further stated that he could identify the person, who fired at the deceased. 4. On the basis of aforesaid, initially FIR was chalked out for offence under Section 307 IPC and investigation commenced. Since the injured was declared brought dead in the hospital, offence of Section 302 IPC was added to the case. On completion of investigation, charge sheet against accused-appellant Sanjay @ Nawab, Rajendra Kumar Jain and Ghanshyam Yadav for offence under Section 302/120B and Section 3/25 of Arms Act; against accused-appellant Sonu @ Prem Chand Yadav for offence under Sections 302, 302/120B and Section 3/25 of Arms Act and against one Luvkush Lamba for offence under Section 302/120B IPC was filed before the Court of Magistrate concerned on 02.05.2006. Since the alleged offences were triable exclusively by the Court of Sessions, the case was committed there. Trial of the case was then made over to the Court of Special Judge, Jaipur City, Jaipur. Charges against accused Luvkush Lamba were framed for offences under Sections 302 read with Section 120-B IPC and Section 120-B IPC, which he denied and claimed to be tried. Trial of the case was then made over to the Court of Special Judge, Jaipur City, Jaipur. Charges against accused Luvkush Lamba were framed for offences under Sections 302 read with Section 120-B IPC and Section 120-B IPC, which he denied and claimed to be tried. Charges against the accused-appellants for offences under Sections 302 read with Section 120-B, 120-B IPC and Section 3/25 of the Arms Act were framed by the trial court which they denied and claimed to be tried. In support of its case, the prosecution produced 56 witnesses and exhibited 207 documents. Thereafter, the accused-appellants were examined under Section 313 Cr.P.C. wherein they pleaded innocence and stated that they were falsely implicated in the case. The defence produced 8 witnesses and exhibited 148 documents. Learned trial court, on conclusion of trial, convicted and sentenced the accused-appellants in the manner as indicated above. 5. Mr. Prahlad Sharma, learned counsel for the accused-appellant Sanjay Jain @ Nawab argued that learned trial court convicted the accused-appellant only on the basis of doubt that since there was business rivalry between the deceased Yuvraj and accused-appellant Sanjay Jain @ Nawab, he had motive to commit his murder. For that purpose, documents, Exhibit-P-57 to Exhibit-P-66 have been prepared by the Investigating Officer falsely. Yearly return for the assessment year 2004-05 was submitted on 12.12.2005 after death of Yuvraj, 1st & 3rd quarterly return was not submitted. In order to show more income than the accused appellant, Exhibit-P-66 has been fabricated, which neither contain signature of the Commercial Taxes Officer, nor any stamp of the Department. Earlier, Investigating Officer Kailash Daan Ratnu (P.W.52) admitted this fact in his statement that Exhibit P-66 is sale tax return of M/s. Ajab Food Product, which was submitted by the wife of deceased, Smt. Shweta on 12.12.2005. He admitted the fact that Exhibit P-57 to Exhibit P-64 are the certified copies obtained from the Commercial Taxes Department. He also admitted that he has not compared aforesaid yearly returns of M/s. Ajab Food Products from its accounts. He stated that on the basis of Exhibit P-66, he reached on the conclusion that there was business rivalry between the deceased and accused appellant, whereas said document has been prepared just to implicate the accused appellant, therefore, taxable sale was only Rs. 6,06,265.00/- and tax free sale was Rs. He stated that on the basis of Exhibit P-66, he reached on the conclusion that there was business rivalry between the deceased and accused appellant, whereas said document has been prepared just to implicate the accused appellant, therefore, taxable sale was only Rs. 6,06,265.00/- and tax free sale was Rs. 96,07,984.50/-, which clearly goes to show that above said document is fabricated and forged document. Learned counsel argued that Smt. Shweta (P.W.49) has stated that it is true that Exhibit P-66 was prepared under her instructions and submitted by her, but she has further stated that she was not aware about taxable sale and non taxable sale. She also admitted the fact that it is true that Exhibit P-66 was submitted after death of her husband. She was not aware about entries made therein. Entire sale of the firm of accused-appellant was more than the firm of the deceased Yuvraj, which can be verified by Exhibit P-76, Exhibit P- 78, Exhibit P-82 & Exhibit P-84, documents related to M/s. Naman Foods. Allegation that appellant Sanjay Jain conspired to kill his own younger brother for the losses he suffered in business done to him is totally unfounded. 6. There was natural affection between the deceased and accused-appellant, as they had helped each other according to the document Exhibit D-117 & Exhibit D-118. Likewise when there was an incident of attack on the deceased Yuvraj, at that time accused-appellant saved him, which is proved by Exhibit D-35. They used to attend their family functions as natural brothers, which is clearly proved by photographs Exhibit D-86 to Exhibit D-99 and Exhibit D-103 to Exhibit D-105. Even electricity meter & drainage pipe of the firm of deceased Yuvraj were installed in the land of accused/appellant, which is proved by Exhibit P-110. Telephone connection of the factory of deceased Yuvraj was in the name of accused-appellant, which is clearly proved by the Exhibit D-24 to Exhibit D-33. 7. It is argued that Ram Singh Shekhawat (P.W.54), the Investigating Officer, has stated that during course of investigation it was found that Rajendra Kumar (P.W.6) was standing opposite Jain Kirana Store, but according to site plan (Exhibit D-2), Rajendra Kumar was standing at STD booth. The investigating officer has also prepared false pocket diaries, Exhibit P-19 to Exhibit P-21 of co-accused Ghanshyam Yadav, Sonu and Luvkush Lamba respectively. The investigating officer has also prepared false pocket diaries, Exhibit P-19 to Exhibit P-21 of co-accused Ghanshyam Yadav, Sonu and Luvkush Lamba respectively. In the said pocket diaries telephone number 2610941 of the residence of the accused-appellant Sanjay Jain has been mentioned, whereas telephone connection regarding said number was installed on 23.03.2006, 9 months after the alleged incident, which is proved by letter of BSNL dated 23.03.2006 (Exhibit P-137). Even material witness of the seizure memos of diaries namely Raju was deliberately not examined by the prosecution. It is argued that call details of the mobile phone of accused-appellant have been changed, which is clearly proved vide Exhibit P-129 and Exhibit P-130. Mahendra Pal Singh (P.W.48) had admitted this fact that call details of the mobile phone of accused-appellant have been changed. Trial court has erred in relying Exhibit P- 130 against the accused-appellant which indicated cell phone no. 9829060813 as that of the appellant. In the call details of the cell phone, last digit 813 has wrongly been treated to be that of accused-appellant whereas his cell phone number ends with 812. Thus, it is clear that false evidence has been created by the prosecution to connect the accused-appellant for alleged conspiracy between other co-accused persons. 8. Learned counsel further argued that identification of the accused Luvkush, Ghanshyam Yadav and Sonu has not been proved. As per prosecution, the informant Mahendra Kumar Jain (P.W.4) is eye witness, who proved identification parade, but he has not supported case of the prosecution and was rather declared hostile. He stated that accused persons were shown to him at Police Station prior to their identification parade. Though he was cross examined by the Public Prosecutor, but no such evidence has been given by him to connect the accused-appellant with the alleged incident. His wife, who was present at the place of incident, has not been produced as a witness. It is further argued that eye witness, Rajendra Prasad (P.W.6) is interested witness, because he was posted as a police constable. He has given statement in support of prosecution, however, he has given contradictory statement about his location and site plan. His wife, who was present at the place of incident, has not been produced as a witness. It is further argued that eye witness, Rajendra Prasad (P.W.6) is interested witness, because he was posted as a police constable. He has given statement in support of prosecution, however, he has given contradictory statement about his location and site plan. He is also tutored witness, therefore, without any reason during course of statement, he has spoken about Mahendra Jain, but he cannot be trustworthy witness, because according to his statement, he was standing and smoking at the time of incident, but he did not take any action at the relevant time, whereas he could have caught the accused persons, who fired at the deceased, nor he had given information to the police station thereabout. He was not even in position to identify the accused persons Ghanshyam and Sonu Yadav. In such circumstances, he cannot be said to be an eye witness. Apart from above two witnesses, other witnesses namely Ramawtar Sharma (P.W.5), Rakesh Tank (P.W.9), Arun Kumar Khodiwal (P.W.10), Smt. Tripati Jain (P.W.11), Ashendra Jain (P.W.12), Rajesh Sogani (P.W.14), Ashok Kumar Meena (P.W.16), Mohan Singh (P.W.27), Dinesh (P.W.33), Radhey Shyam (P.W.34), Dinesh Malpani (P.W.45), Ratan Lal Jain (P.W.46) and Smt. Shweta Jain (P.W.49) are interested witnesses, because witnesses Rakesh Tank (P.W.9), Smt. Tripati Jain (P.W.11), Radhey Shyam (P.W.34) and Smt. Shweta Jain (P.W.49) are the close relatives of deceased Yuvraj and other witnesses were also interested witnesses being employees and acquaintance of the deceased Yuvraj. Learned counsel argued that Rakesh Tank (P.W.9) has made an utterly false statement that he did not know Sanjay Jain @ Nawab. His wife happens to be first cousin of the accused-appellant Sanjay and his deceased brother Yuvraj. Statement of Rakesh Tank (P.W.9) does not therefore inspire any confidence. His statement under Section 161 Cr.P.C. was also recorded on 26.02.2006, i.e. eight months after the incident. In such circumstances, their evidence cannot be taken into consideration to convict the accused-appellant. Besides, their evidence is also self contradictory on the basis of which, case of prosecution cannot be proved. 9. His statement under Section 161 Cr.P.C. was also recorded on 26.02.2006, i.e. eight months after the incident. In such circumstances, their evidence cannot be taken into consideration to convict the accused-appellant. Besides, their evidence is also self contradictory on the basis of which, case of prosecution cannot be proved. 9. Learned counsel argued that witnesses namely Gusai Ram (P.W.1), Ram Singh (P.W.18), Ricchpal (P.W.28), Ram Khiladi (P.W.29), Satya Prakash (P.W.30), Chandrapal Singh (P.W.31), Mohammad Safiq Khan (P.W.32), Umrao Banjara (P.W.35), Nandu Singh (P.W.36), Jhandu Ram (P.W.37), Kundan Singh (P.W.38), Birbal Singh (P.W.39), Murari Lal Sharma (P.W.40), Vishnu Dev (P.W.44), Ramdev Singh (P.W.50), Bheem Singh Bika (P.W.51), Kailash Dan (P.W.52) and Ram Singh (P.W.54) are the witnesses of police department, who have deliberately supported case of prosecution. Investigating Officer, Ram Singh (P.W.18), Bheem Singh Bika (P.W.51) and Kailash Dan Ratnu (P.W.52) have prepared false case against the accused-appellant at the instance of Smt. Shweta Jain, as they were in league with her. Even otherwise, statements of the above witnesses are also contradictory to each other, therefore, they cannot be said to be trustworthy witnesses. It is submitted that Vimal Kumar Jain (P.W.2), Harsh Sharma (P.W.3), Pankaj Shekhawat (P.W.7), Sanjay Saini (P.W.8), Jagdish Narayan Sharma (P.W.13), Ram Narayan (P.W.15), Ram Girraj Katariya (P.W.17), Kishan Lal Bagherwal (P.W.19), Jagdish Saini (P.W.20), Chaman Agarwal (P.W.21), Jasmal Singh (P.W.22), Sabir Khan (P.W.24), Mohammad Farooq (P.W.25), Harishchand Sethi (P.W.26), Mohan Singh (P.W.27), Surendra Ajmera (P.W.43), Sushil Kumar (P.W.47), Mahendrapal Singh (P.W.48) and Hardeep Rai Batra (P.W.53) are not relevant witnesses and have been produced just to create evidence against the accused-appellant. 10. It is argued that Luvkush Lamba was examined as an approver after recording statement of 22 witnesses. According to his statement, he is the real culprit, who committed conspiracy of murder at the instance of Smt. Shweta Jain. He is the person, who managed shooters, weapons and all other activities regarding murder. He is also habitual offender. His arrest was doubtful as it was shown from District Sihora, Jabalpur on 13.02.2006, whereas according to Exhibit P-40, he himself stated that he was arrested on 11.02.2006 at 11.00 P.M. from District Sihora. He is the person, who managed shooters, weapons and all other activities regarding murder. He is also habitual offender. His arrest was doubtful as it was shown from District Sihora, Jabalpur on 13.02.2006, whereas according to Exhibit P-40, he himself stated that he was arrested on 11.02.2006 at 11.00 P.M. from District Sihora. It is also doubtful that alleged recoveries from Luvkush Lamba are for the purpose to implicate the accused-appellant in a false case, even otherwise also his statement before the Court is absolutely contrary to his statement Exhibit P-40, recorded under the provisions of Section 164 Cr.P.C., which can be verified by the detailed statement of Luvkush Lamba. Even, there is no corroborative evidence on behalf of the prosecution to implicate the accused-appellant in the alleged incident, as no such person has been examined to prove this fact that alleged conspiracy was committed in his presence, nor any transaction about alleged conspiracy was done in presence of any prosecution witness. It is settled law that evidence of an accomplice cannot be relied upon without any other corroborative evidence. Even Luvkush Lamba has not stated anything about hatching up of conspiracy in presence of any of the prosecution witness. In such circumstances prosecution has utterly failed to prove the case against the accused-appellant. On the contrary, there is chain of circumstances to the effect that Smt. Shweta Jain is the real culprit, because she was annoyed with her husband (deceased Yuvraj), as he was having illicit relationship with other women. A woman namely Preety Jain, who was employee of deceased Yuvraj, committed suicide due to illicit relationship with him. This fact is proved by the documents Exhibit D-107 to Exhibit D-122. Moreover, Tripati Jain (P.W.11) was also having illicit relations with the deceased Yuvraj, which is clearly proved by documents Exhibit D-22 and D-23, which are the insurance policies in the names of Smt. Tripati Jain and Smt. Shweta Pandya. Both these policies were taken on very same day in the name of Smt. Tripati Jain and Smt. Shweta Jain, even address and telephone number of Smt. Tripati Jain in the insurance policy is of the residence of deceased Yuvraj. She was annoyed during cross-examination when counsel for the accused-appellant put a question about that insurance policy. Specific note was made by the trial court at page no. She was annoyed during cross-examination when counsel for the accused-appellant put a question about that insurance policy. Specific note was made by the trial court at page no. 14 of statement of Smt. Tripati Jain that she was not in a position to give proper answers of her income sources, whereas income returns were filed by her. On the contrary, she has stated that she was drawing salary of Rs. 4,000/- per month for which no income tax return was required. Since Smt. Shweta Jain (P.W.49) was also aware about aforesaid illicit relationship of deceased Yuvraj, she hatched conspiracy to murder her husband. In pursuance of said conspiracy, she wanted to secure her life, as such she got the insurance policy of huge amount in the name of her husband by selling her jewellery in the month of February, 2005, just before death of Yuvraj, which fact is also proved by documents (Exhibit D-133 to Exhibit D- 134). Smt. Shweta Jain by manipulating Chairman of the trust namely; Radheyshyam Pathak (P.W.34), also got rent note of the shop, valued at Rs. 50 lacs in the month of October, 2005, whereas said shop was let out in the name of Smt. Ratan Kanwar and accused-appellant, which fact is also proved by Exhibit P-53, Exhibit D-76, Exhibit D-106 and Exhibit D-127. 11. Learned counsel argued that Smt. Shweta Jain (P.W.49) has also given statement in the press/media, on the basis of which, news was published, which is Exhibit D-5, but she did not complaint against the accused-appellant. When her statement was recorded during course of investigation, she had shifted in a rented house, despite availability of house owned by deceased Yuvraj. Therefore, she submitted an application to transfer the telephone connection through Exhibit D-82. In view of the above mentioned facts and circumstances, it is crystal clear that Smt. Shweta Jain is the real culprit of the alleged incident, therefore, she had changed her statement time and again during course of investigation. Therefore, she submitted an application to transfer the telephone connection through Exhibit D-82. In view of the above mentioned facts and circumstances, it is crystal clear that Smt. Shweta Jain is the real culprit of the alleged incident, therefore, she had changed her statement time and again during course of investigation. According to Exhibit D-80, Smt. Shweta Jain levelled allegations against the accused-appellant, which was recorded on 22.06.2005, but police did not take any action against the accused-appellant, because, in fact statement Exhibit D-80 was recorded in back date, which is also proved by the case diary dated 26.06.2005, in which reference about statement of Smt. Jain has been given, in which she had not made any complaint against the accused-appellant, rather she has stated that prior to two days from the incident, accused-appellant went to Kota together with his wife. She has also stated that there was no dispute with her husband, nor any person had given threatening to her husband in any manner, but she stated that there was competition of their business from Sas-Bahu Namkeen and Bhaiya Brand Namkeen. In this way, statement Exhibit D- 80 is absolutely contrary to statement of Smt. Shweta Jain. 12. It is argued that there is no evidence produced by the prosecution to connect the accused-appellant with the co-accused Rajendra Jain. Only one witness Ratan Lal Jain (P.W.46) has stated that accused-appellant and Rajendra Jain were his tenants, but he has given contradictory statement to this effect. No rent note was produced to prove this fact that accused-appellant remained as tenant in the house of Ratan Lal Jain. No document regarding any transaction between accused-appellant and co-accused Rajendra Jain has been produced by the prosecution. Alleged amount of Rs. 3,00,000/- regarding payment to the co-accused persons is not proved, because Rs. 7,00,000/- were withdrawn through cheque No. 777492 dated 14.06.2005, which was withdrawn by the father of accused-appellant as per Exhibit P-156 and Exhibit D-116. It is also relevant to note here that there was daily transaction in the bank account of accused-appellant in the Bank of Baroda, therefore, it cannot be said that amount of Rs. 7,00,000/- was withdrawn to make the payment to co-accused persons. Even otherwise also, when payment of only Rs. 3,00,000/- was to be made, then why Rs. 7,00,000/- were withdrawn, which shows that alleged payment to the co-accused is entirely inadmissible. 7,00,000/- was withdrawn to make the payment to co-accused persons. Even otherwise also, when payment of only Rs. 3,00,000/- was to be made, then why Rs. 7,00,000/- were withdrawn, which shows that alleged payment to the co-accused is entirely inadmissible. Learned counsel argued that incident took place on 22.06.2005 and police statements of Smt. Tripti Jain (P.W.11) and Ramavtar Sharma (P.W.5), employees of the deceased (Exhibit D-19 and Exhibit D-1 respectively) were recorded on 24.06.2005 and 23.06.2005 respectively and police statement of Smt. Shweta Jain (P.W.49) wife of the deceased (Exhibit D-80) was recorded on 26.06.2005. These witnesses had made allegation against Sanjay Jain that he could be responsible for killing of Yuvraj due to business rivalry, but the police did not believe them at that stage. Neither the police took any steps against the appellant, nor did they try to investigate the matter from that angle. 13. Learned counsel while referring to statement of Sanjay Saini (P.W.8) argued that statement of this witness that Kailash Pandya, father of the accused threatened him that brother of the shooter had come to Jaipur and if anyone gives evidence in the matter, he/she would be shot dead, cannot be relied. If that was so, why Kailash Pandya, father of accused Sanjay Jain has not been made a witness and why his statement under Section 161 Cr.P.C. was not recorded. It is argued that in X-Ray plate (Exhibit P-115), there were two foreign bodies found visible in the skull of the deceased. Ranveer Singh (P.W.56), Radiologist and Dr. N.L. Disania (P.W.42) have also proved this fact but neither Rajendra nor Luvkush Lamba have stated that the deceased was fired twice and who was the second accused, who fired at the deceased, has not been explained by the prosecution. This entitles the appellant to benefit of doubt. It is argued that there is no evidence whatsoever on record that Luvkush Lamba had any business relationship with Rajendra Jain. The police has not proved the fact that accused Sanjay Jain, Rajendra Kumar Jain twice called Luvkush Lamba to show him the target. Alleged diary of Luvkush Lamba recovered vide Exhibit P-21 showing that he was also known as Aman Lamba is nothing but another example of police padding. Luvkush Lamba has denied that he was also known as Aman Lamba. Alleged diary of Luvkush Lamba recovered vide Exhibit P-21 showing that he was also known as Aman Lamba is nothing but another example of police padding. Luvkush Lamba has denied that he was also known as Aman Lamba. Luvkush Lamba has also not stated as to what was his cell phone number, on which he was called by Rajendra Kumar Jain. Learned counsel submitted that diaries recovered at the instance of Ghan Shyam, Sonu Yadav and Luvkush Lamba vide Exhibit P-19 to Exhibit P-21 respectively contained telephone number of Sanjay Jain. According to the prosecution, the incident took place on 22.06.2005 whereas the telephone in question was installed in the house of Sanjay Jain much thereafter on 10.01.2006, which is evident from the information supplied to the accused-appellant by the office of Bharat Sanchar Nigam Limited, Jaipur. Even then, this number was entered in the diaries of the accused. Thus, these diaries have been fabricated by the investigating officer. In view of the above, it is crystal clear that accused-appellant has not committed any offence as alleged by the prosecution. Even motive and intention about business rivalry is not proved in any manner between the deceased and accused-appellant. Learned counsel for the appellant, in support of his arguments, has relied upon the judgments of the Supreme Court in Zahira Habibullah Sheikh and Another Vs. State of Gujarat and Others, AIR 2004 SC 3467 ; State of Gujarat Vs. Mohanlal Jitamalji Porwal and Another, AIR 1987 SC 1321 ; Abdul Sattar Vs. Union Territory, Chandigarh, AIR 1986 SC 1438 ; Lalchand etc. etc. Vs. State of Haryana, AIR 1984 SC 226 ; Ram Prasad Vs. State of Maharashtra, (1999) 5 SCC 30 ; A. Deivendran Vs. State of Tamil Nadu, AIR 1998 SC 2821 ; Anvar P.V. Vs. P.K. Basheer and Others, (2014) 10 SCC 473 ; S. Arul Raja Vs. State of Tamil Nadu, (2010) 8 SCC 233 ; and judgment of this Court in Kalawati W/o Shri Lal Chand & 3 Others Vs. State of Rajasthan through Public Prosecutor, 2017 (1) WLC (Raj.) 527. 14. Mr. Prahlad Sharma, learned counsel has also submitted that application filed by the accused-appellant Sanjay Jain under Section 391 Cr.P.C. be allowed and documents annexed therewith be taken on record as additional evidence. State of Rajasthan through Public Prosecutor, 2017 (1) WLC (Raj.) 527. 14. Mr. Prahlad Sharma, learned counsel has also submitted that application filed by the accused-appellant Sanjay Jain under Section 391 Cr.P.C. be allowed and documents annexed therewith be taken on record as additional evidence. As regards Exhibit P-66, annual return of the year 2004-05, learned counsel argued that this document is forged one and was not submitted before the Commercial Taxes Department. In this connection, learned counsel relied on communication dated 13.09.2012 received from Public Information Officer, Commercial Taxes Department, Circle A, Jaipur that said annual return on ST-5A performa was not issued by their office. Reliance is also placed on another information received by the appellant Sanjay Jain from Public Information Officer, Assistant Commissioner, Commercial Taxes Department, Circle A, Jaipur informing that record relating to annual return for the period from 10.12.2005 to 15.12.2005 was not available in their office. Learned counsel submitted that the motive attributed to the appellant Sanjay Jain for allegedly murdering his own brother Yuvraj was alleged business rivalry as the appellant Sanjay Jain started suffering losses, is factually incorrect. In this connection, learned counsel has also referred to document, i.e. annual return of the year 2004-05 of the firm of the appellant annexed along with the application. It is argued that a factual report sent by SHO, Police Station Transport Nagar, Jaipur to Superintendent of Police, Jaipur City East on 17.02.2006, copy of which has been filed along with the application, shows that Jeetu was not made an accused. In fact, another factual report dated 25.08.2005 has also been filed along with the application and it was mentioned therein that no case was made out against Sanjay Jain. It was again reiterated in factual report dated 30.11.2005 sent by Circle Officer, Adarsh Nagar to Superintendent of Police concerned. Learned counsel also invited attention of the Court towards order sheets of the case diary to show that whatever was mentioned therein is contrary to what has actually been produced on record by the investigating officer. While information under Section 27 of the Evidence Act (Exhibit P-33) was given by the accused Luvkush Lamba on 14.02.2006 whereas in the case diary it has been mentioned as 19.02.2006. Learned counsel, therefore, prayed that the application under Section 391 Cr.P.C. be allowed and documents annexed therewith may be taken on record as additional evidence. 15. Mr. While information under Section 27 of the Evidence Act (Exhibit P-33) was given by the accused Luvkush Lamba on 14.02.2006 whereas in the case diary it has been mentioned as 19.02.2006. Learned counsel, therefore, prayed that the application under Section 391 Cr.P.C. be allowed and documents annexed therewith may be taken on record as additional evidence. 15. Mr. Mahesh Gupta, learned counsel for the accused-appellant Rajendra Kumar Jain argued that the trial court has failed to appreciate that present case entirely hinges on circumstantial evidence. Each of the circumstances should pin pointedly indicate towards the guilt of the accused and none else. Credibility of Luvkush Lamba was highly doubtful as he turned approver after statements of 22 prosecution witnesses were recorded. Statement of this witness should not be accepted as he has stated so many things which a prudent man cannot believe. He has, for the first time, stated that he has two different names but he could not give any explanation when he was confronted with the vakalatnama, arrest memos and all other memos, on which he had signed earlier, in which his name or pseudo name do not find place. Law with regard to evidence of an approver is that his testimony has to be examined very cautiously and the same cannot form basis for conviction unless it is duly corroborated by direct evidence. Learned counsel argued that an accomplice should speak in so many words that he has also participated in the crime and should specifically state that what role was played by him in the crime. He should not try to shirk away and claim innocence in his statement. It is argued that the prosecution has sought to prove that Sanjay Jain became friend with Rajendra Kumar Jain because they were together tenant in the house of Ratan Lal Jain (P.W.46), who has stated that when Sanjay Jain was his tenant, he had a son aged about one year and Rajendra Jain was his tenant for about 2½ years. His statement is not reliable because as per Abdul Sattar (D.W.5), Sub-Registrar, Nagar Nigam, Jaipur, who has proved Exhibit P-203, report form issued by the hospital, date of birth of the son of Smt. Rashmi Jain and Sanjay Jain was 13.01.1993 and birth certificate was Exhibit D-144. Ratan Lal (P.W.46) is not stating that this child was born while Sanjay Jain was his tenant. Ratan Lal (P.W.46) is not stating that this child was born while Sanjay Jain was his tenant. It is argued that as per arrest memo of Rajendra Kumar Jain (Exhibit D-57), a bunch of five keys was recovered from his possession, but there is no evidence to the effect that this bunch of keys was sealed. The prosecution has alleged that it had opened shop of Rajendra Kumar Jain with the help of these keys and recovered one country made revolver; one 315 bore country made katta and 13 live cartridges from the shop vide Exhibit P-45, in which it is mentioned that bunch of keys was obtained from malkhana. Unless there is evidence to the effect that such keys were sealed and preserved, the same cannot be linked to accused-appellant Rajendra Kumar Jain. Even recovery of four cheques vide Exhibit P-30 and one promissory note vide Exhibit P- 145 from Sanjay Jain also cannot be relied because it has not been proved that signatures on the cheques and promissory notes were of accused-appellant. Even from visual comparison of signatures on the cheques and promissory note from signatures of the accused-appellant in his statement under Section 313 Cr.P.C., it would be evident that there is lot of difference between two. The prosecution has fabricated the evidence against the accused-appellant in the present case which is proved from the fact that diaries recovered at the instance of accused Ghan Shyam, Sonu Yadav @ Prem Chand and Luvkush Lamba vide Exhibit P-19, Exhibit P-20 and Exhibit P-21 respectively, telephone number of Rajendra Kumar Jain has been indicated therein whereas he does not have any telephone connection. 16. Learned counsel further argued that Rakesh Tank (P.W.9) is a planted witness because his statement under Section 161 Cr.P.C. (Exhibit D-16) was recorded eight months after the incident on 26.02.2006. He pretended that he did not know Sanjay Jain though he is related to Sanjay Jain through his wife, who happens to be her first cousin (aunt’s daughter). His statement that he was introduced to Sanjay Jain by Rajendra Kumar Jain is therefore palpably false. 17. Learned counsel has also supported the argument that pardon has wrongly been granted to Luvkush Lamba after recording statements of 22 witnesses in the present case. Greatest amount of caution ought to be exercised while relying on that statement. His statement that he was introduced to Sanjay Jain by Rajendra Kumar Jain is therefore palpably false. 17. Learned counsel has also supported the argument that pardon has wrongly been granted to Luvkush Lamba after recording statements of 22 witnesses in the present case. Greatest amount of caution ought to be exercised while relying on that statement. Statement of Luvkush Lamba does not find much corroboration from the statement of Rakesh Tank. While Rakesh Tank has stated that Luvkush Lamba, Ghanshyam and Sonu Yadav @ Prem Chand were hired by Rajendra Kumar Jain, but Luvkush Lamba does not say that he was hired by Rajendra Kumar Jain. The prosecution has alleged that accused-appellant Ghan Shyam and Sonu Yadav were tenants in the house of Ashok Kumar Meena (P.W.16) and accused Luvkush Lamba used to come to them in his house and he started residing with them ten days before the incident. During this period, Sanjay Jain and Rajendra Jain visited them twice and thrice at around 8.00-9.00 P.M. If that was so, the police should have conducted test identification parade of Sonu Yadav, Ghanshyam and Luvkush from Ashok Kumar Meena, landlord. Rent note dated 15.02.2005 (Exhibit P- 17) between Ashok Kumar Meena and accused-appellants Ghanshyam and Sonu Yadav has been fabricated by the police and accused-appellants were compelled to sign such rent note in the police station while in their custody. 18. Mr. Govind Prasad Rawat, learned counsel appearing on behalf of the accused-appellants Ghanshyam and Sonu Yadav @ Prem Chand argued that FIR does not contain physiognomy of the accused, therefore, statements of Harsh Sharma (P.W.3), Rajendra Prasad (P.W.6) and Pankaj Shekhawat (P.W.7) that they identified the accused in the test identification parade cannot be relied. Mahendra Kumar Jain (P.W.4) has rightly not supported prosecution case on the question of identification. It is argued that as per the case of the prosecution, Yuvraj was hit by firearm while he was talking on his mobile, but the prosecution has not recovered any such mobile phone. Allegation that the accused-appellant Sonu opened fire at the deceased is not substantiated by any scientific evidence. If the accused-appellant Sonu had thrown Katta at the place of occurrence, the prosecution should have lifted finger prints from this katta so as to match the same with the finger print of the accused-appellant Sonu. No such effort was made by the prosecution. If the accused-appellant Sonu had thrown Katta at the place of occurrence, the prosecution should have lifted finger prints from this katta so as to match the same with the finger print of the accused-appellant Sonu. No such effort was made by the prosecution. Recovery of cycle at the instance of Ghanshyam vide Exhibit P-24 has wrongly been made. Recovery of diary at the instance of accused-appellant Sonu Yadav vide Exhibit P-20 cannot be read in evidence as it is amply shown that this diary was fabricated and contained landline telephone number of the residence of Sanjay Jain whereas this phone was installed much after the incident. Learned counsel argued that rent note (Exhibit P-17) has been fabricated, which is clearly proved by Ashok Kumar Meena (P.W.16), landlord because it does not show father’s name of the appellants. The investigating officer has not made any effort to obtain any similar rent note from other tenants of Ashok Kumar Meena. Rent note is shown to have been prepared on simple piece of paper and not on any stamp paper. It was neither registered nor notarized. Chaman Agarwal (P.W.21) has stated that Ghanshyam and Sonu were his employees in the canteen of Government Sectariat. Learned counsel submitted that test identification parade (Exhibit P-9 to Exhibit P-13) does not prove anything against the accused-appellants because he had categorically informed Khagendra Sharma (P.W.55), Judicial Magistrate before test identification parade that accused were shown to him before test identification parade. FSL Report (Exhibit P-176) showing that hand writing on the diaries (Exhibit P-19 to Exhibit P-21) were of the accused cannot be accepted as evidence because the accused were forced to facilitate fabrication of such evidence by the police while they were in police custody. Information under Section 27 of the Evidence Act by accused Ghanshyam about recovery of one country made katta and two cartridges vide Exhibit P-143 is wholly illegal and result of police padding. Learned counsel therefore argued that accused-appellants Ghanshyam and Sonu Yadav have been falsely implicated and the entire evidence produced against them before the trial court was result of fabrication of evidence by the police. 19. Per contra, Mr. Anurag Sharma, learned Additional Advocate General appearing on behalf of the State and Mr. Learned counsel therefore argued that accused-appellants Ghanshyam and Sonu Yadav have been falsely implicated and the entire evidence produced against them before the trial court was result of fabrication of evidence by the police. 19. Per contra, Mr. Anurag Sharma, learned Additional Advocate General appearing on behalf of the State and Mr. Madhav Mitra, learned counsel for the complainant opposed the appeals and argued that genesis of the incident lies in the deep rooted business rivalry between the deceased Yuvraj and Sanjay Jain, who were real brothers. Their business rivalry has been proved by adequate evidences. Learned Additional Advocate General in this connection referred to statement of Shweta Jain (P.W.49) wife of the deceased; Ramvatar Sharma (P.W.5) Manager of Yuvraj and former employee of Sanjay Jain; Tripti Jain (P.W.11); Ashendra Jain (P.W.12), Rajesh Sogani (P.W.14), who were common friends of both deceased Yuvraj and accused Sanjay Jain and Vishnu Dev (P.W.44), Investigating Officer in the case pertaining to offence under Essential Commodities Act wherein Smt. Rashmi Jain, wife of the appellant Sanjay Jain was arrested. Sanjay Jain in that case suspected the role of the deceased Yuvraj. Learned Additional Advocate General submitted that Ratan Lal (P.W.46), landlord of the house has proved that Sanjay Jain was his tenant for about 2½ years. He stated that Rajendra Kumar Jain was also his tenant around the same time. It is thus clear that two accused were having friendship since then. Sanjay Jain had hired contract killers to liquidate his own brother due to business rivalry, which has been amply proved by testimony of approver Luvkush Lamba (P.W.23). He has explained in detail as to in what manner accused Sanjay Jain initially procured certain firearms from him, but subsequently when he could not muster enough courage to use them, entrusted this task to Luvkush Lamba to get his own brother killed. His statement would clearly show that how the weapons were procured and contract killers were hired by him. It is argued that Luvkush Lamba has been cross-examined at length and he had remained unshaken. Learned Additional Advocate General read over his statement in detail, which we shall deal with at appropriate place hereinafter. 20. His statement would clearly show that how the weapons were procured and contract killers were hired by him. It is argued that Luvkush Lamba has been cross-examined at length and he had remained unshaken. Learned Additional Advocate General read over his statement in detail, which we shall deal with at appropriate place hereinafter. 20. Learned Additional Advocate General argued that Rakesh Tank (P.W.9) and his wife, who happens to be cousin of the deceased and accused comes from different castes and they married each other against the wishes of their parents and family members, therefore, he did not frequently go to the house of Sanjay Jain. There is nothing unusual if he did not know him. He also submitted that Rakesh Tank (P.W.9) has proved that money was given by Sanjay Jain in his presence to Rajendra Kumar Jain and Luvkush Lamba, as he has stated that he gave a sum of Rs. 10,000/- to Rajendra Kumar Jain, who in his presence had loaned this amount to Luvkush Lamba. On another occasion when he was present in the shop of Rajendra Kumar Jain, Sanjay Jain came there and handed over him an envelope containing certain currency notes out of which Rs. 10,000/- were returned to this witness, which Rakesh Tank loaned to Luvkush Lamba through Rajendra Kumar Jain. Hardeep Rai Batra, Manager of Bank of Baroda, Adarsh Nagar Branch, Jaipur, where the accused Sanjay Jain was operating his account has been produced to prove that money was withdrawn. Learned Additional Advocate General argued that testimony of Luvkush Lamba cannot be discarded only because his role as described in his statement was different than the role of Sonu, who actually opened fire at the deceased. He argued that in a case of conspiracy, role of each one of the accused is bound to differ but if the object is common, that does not in any manner diminish the evidenciary value of the statement of approver. He has corroborated to what has been stated by Rakesh Tank (P.W.9) that Rs. 90,000/- as against Rs. 1,00,000/- was paid to Ghanshyam. Learned Additional Advocate General in support of his argument relied on the judgments of the Supreme Court Mrinal Das and Others Vs. State of Tripura, (2011) 9 SCC 479 ; Chandra Prakash Vs. State of Rajasthan, (2014) 8 SCC 340 and State of Rajasthan Vs. 90,000/- as against Rs. 1,00,000/- was paid to Ghanshyam. Learned Additional Advocate General in support of his argument relied on the judgments of the Supreme Court Mrinal Das and Others Vs. State of Tripura, (2011) 9 SCC 479 ; Chandra Prakash Vs. State of Rajasthan, (2014) 8 SCC 340 and State of Rajasthan Vs. Balveer alias Balli and Another, (2013) 16 SCC 321 . 21. Learned Additional Advocate General referred to testimony of Ashok Kumar Meena (P.W.16), who was landlord of accused Sonu Yadav and Ghanshyam and has proved rent note (Exhibit P-17). He has also proved that accused Luvkush Lamba used to frequently visit Sonu Yadav and Ghanshaym in their room and in fact, he started residing with them ten days before the incident. Rajendra Jain and Sanjay Jain visited them at around 8.00-9.00 in the night. He has also proved rent agreement dated 15.02.2005 (Exhibit P-17) showing that Sonu Yadav and Ghanshyam were his tenants. He has also proved that accused Ghanshyam and Sonu Yadav vacated the room in a hurry on the very day of the incident. This amply proves meeting of mind between the accused-persons and the aspect of conspiracy. Similarly, testimony of Ram Narain Meena (P.W.15), STD Booth Owner, Ram Girraj Kataria (P.W.17) and Mahendra Pal Singh (P.W.48), Nodal Officer of Bharti Hexacom Limited, who verified the call details on record, also proves meeting of mind between the accused persons and the conspiracy. On this aspect, learned Additional Advocate General relied upon the judgment of the Supreme Court in Gulab Sarbar Vs. State of Bihar (Now Jharkhand), (2014) 3 SCC 401 and Baldev Singh Vs. State of Punjab, (2009) 6 SCC 564 . Learned Additional Advocate General argued that not holding test identification parade of the accused by Ashok Kumar Meena would not have any adverse effect on the prosecution case as there is ample evidence against the accused even otherwise. In support of this argument, reliance has been placed upon judgments of the Supreme Court in Ashok Debbarma alias Achak Debbrama Vs. State of Tripura, (2014) 4 SCC 747 and S. Vs. Sunil Kumar & Another (2015) 8 SCC 478 . 22. In support of this argument, reliance has been placed upon judgments of the Supreme Court in Ashok Debbarma alias Achak Debbrama Vs. State of Tripura, (2014) 4 SCC 747 and S. Vs. Sunil Kumar & Another (2015) 8 SCC 478 . 22. Learned Additional Advocate General referred to statement of Chiman Agarwal (P.W.21), owner of Canteen at Government Secretariat where Sonu Yadav and Ghanshyam used to work and argued that this witness has proved attendance register of the canteen where he had hired about 35-40 employees. He has proved attendance register (Exhibit P-22) in which word “P” was mentioned against the names of those present and word “A” was mentioned against the names of those absent. He initially employed Ghanshyam and on his recommendation, he also employed Sonu Yadav in January, 2005, who worked for about 4-5 months and left in June. It is proved from his statement that both the accused Ghanshyam and Sonu Yadav were missing from the canteen and did not return after the incident had taken place. Learned Additional Advocate General referred to statement of Satish Chandra Sethi (P.W.26) and submitted that he is attesting witness of recovery of one country made revolver, one country made katta 315 bore and 13 cartridges. They were recovered from the shop of Rajendra Kumar Jain at his instance. Even though he is closely related to Rajendra Jain, but he too has stated that he did not know the name of the girl, who married Rakesh Tank. It is submitted that letter dated 23.03.2006 (Exhibit P-138) has been issued by S.H.O., Police Station Transport Nagar, Jaipur to Manager of UCO Bank, Johari Bazar, Zone II, Jaipur where the accused Rajendra Kumar Jain was maintaining his account to verify the fact that as to in whose name the account was being operated and in whose name cheque book was issued. An endorsement has been made on the same letter by the Bank Manager that this account was in the name of Rajendra Kumar Jain. Prosecution witnesses, Vimal Kumar Jain (P.W.2); Harsh Sharma (P.W.3), Mahendra Kumar Jain (P.W.4) have proved the manner in which the incident had taken place and the presence of RAC Constable, Rajendra Prasad (P.W.6). Rajendra Prasad (P.W.6) is an eyewitness whose presence is corroborated by the aforenamed witnesses, therefore, his evidence cannot be discarded only because he did not try to save the deceased or chase the accused. Rajendra Prasad (P.W.6) is an eyewitness whose presence is corroborated by the aforenamed witnesses, therefore, his evidence cannot be discarded only because he did not try to save the deceased or chase the accused. The incident happened so suddenly that this witness was taken by shock and was perplexed as to how to react to the situation. Therefore, the fact that he did not try to catch the accused or save the deceased cannot be a reason to discard his testimony. In support of this argument, learned Additional Advocate General relied upon the judgment of the Supreme Court in Rana Pratap & Others Vs. State of Haryana, (1983) 3 SCC 327 . 23. Learned Additional Advocate General argued that Mahendra Kumar Jain (P.W.4) was the first person, who witnessed the incident and went to the police station. He proved not only presence of Rajendra Prasad (P.W.6) and his wife but also the manner in which the incident took place. He correctly identified accused Sonu Yadav in identification parade. Even part testimony of hostile witness can be relied. In support of this argument, reliance has been placed upon the judgments of the Supreme Court in C. Muniappan and Others Vs. State of Tamil Nadu, (2010) 9 SCC 567 and Mrinal Das & Another(supra). Learned Additional Advocate General referred to statement of Sanjay Saini (P.W.8), who has also narrated the manner in which the incident had taken place. He has stated that he was employee in the Jain Temple where the deceased had gone for offering prayers on the fateful day. On hearing sound of fire, he came out of the temple and saw the deceased Yuvraj lying by the side of his car. Lot of people were there. Mahendra Jain rushed to the police station and police reached there within five minutes. Even this witness has proved presence of Mahendra Jain (P.W.4) Vimal Kumar Jain (P.W.2) and Rajendra Prasad (P.W.6) and stated that after the incident, Kailash Pandya used to visit temple and tell this witness that brother of the shooter has come in town and whoever would give evidence in this case would be shot dead and his legs would be broken. He used to ask this witness (Sanjay Saini) to tell this fact to all the witnesses. Learned Additional Advocate General therefore argued that even father of the accused Sanjay Jain was aware of his involvement in the crime. He used to ask this witness (Sanjay Saini) to tell this fact to all the witnesses. Learned Additional Advocate General therefore argued that even father of the accused Sanjay Jain was aware of his involvement in the crime. It is argued that Jagdish Narain Sharma (P.W.13) has stated that he saw Luvkush Lamba at the place of occurrence at some distance in front of his shop and that after the incident he caught a mini bus going towards Sanganeri Gate. Replying to the arguments of learned counsel for the accused-appellant Sanjay Jain on application under Section 391 Cr.P.C., learned Additional Advocate General argued that though annual assessment return submitted by Smt. Shewta Jain, copy of which has been produced as Exhibit P-66 has not been authenticated by Commercial Taxes Department, but it cannot be a reason to say that this document was fabricated by the police. No such objection was taken by the defence when this document was exhibited in evidence during trial. Therefore, belated objection cannot be entertained. It is argued that the documents now obtained by accused Sanjay Jain from the Commercial Taxes Department to show that business of his firm was more than the business of the firm of the deceased is of no meaning at this stage when deep rooted business rivalry between two brothers has been amply proved by so many witnesses in their testimony. Some of the documents, which were submitted by the prosecution provided enough corroboration to their testimony. Regarding diaries (Exhibit P-19 to Exhibit P-21), learned Additional Advocate General submitted that number of Sanjay Jain found in these diaries only indicated that he continued to remain in constraint touch with the accused even after the incident. It is further argued that if the keys and diaries recovered at the instance of Sonu Yadav and Ghanshyam were directly deposited in malkhana, there was nothing illegal about the same. At that time, when these items were deposited with malkhana, their relevance could not have been visualized. Referring to letter dated 23.03.2006 (Exhibit P-37) written from SHO, Police Station Transport Nagar, Jaipur City to Deputy Managing Director, Bharat Sanchar Nigam Limited, it is argued that this proves that cell phone no. 2640352 was in the name of Sanjay Jain and cell phone no. 2654815 was in the name of Rajendra Kumar Jain. Referring to letter dated 23.03.2006 (Exhibit P-37) written from SHO, Police Station Transport Nagar, Jaipur City to Deputy Managing Director, Bharat Sanchar Nigam Limited, it is argued that this proves that cell phone no. 2640352 was in the name of Sanjay Jain and cell phone no. 2654815 was in the name of Rajendra Kumar Jain. Other two numbers namely 2610941 and 2612858 were in the name of Kailash Pandey, father of the accused Sanjay Jain. It is further argued that the documents, which the accused-appellant Sanjay Jain seeks to produce by way of application under Section 391 Cr.P.C. were in existence even when the trial of the case was in progress. However, no efforts were made by the accused to produce these documents in defence. Therefore, no such documents can be taken on record at this belated stage. Learned Additional Advocate General argued that case diaries and its copies and internal correspondence between the police officers can never be allowed to be accepted in evidence even if the accused has obtained the same under Right to Information Act. In view of provisions of Section 172 Cr.P.C., investigating officer can simply call the diary for his perusal, while giving statement to refresh his memory and that the same cannot be made use for any other purpose. 24. Learned Additional Advocate General argued that minor lacuna in the police investigation cannot help the accused and are rather liable to be ignored. Reliance in support of this argument has been placed on the judgments of the Supreme Court in Gajoo Vs. State of Uttarakhand, (2012) 9 SCC 532 and C. Muniappan & Others (supra). Learned Additional Advocate General therefore argued that the learned trial court was perfectly justified in recording findings of conviction of the accused-appellants as their guilt was proved beyond reasonable doubt. It is therefore prayed that the appeals filed by the accused-appellants as also the application under Section 391 Cr.P.C. filed by accused-appellant Sanjay Jain may be dismissed. 25. We have given our anxious consideration to rival submissions and carefully perused the material on record. 26. Apart from testimony of approver and other evidence produced by the prosecution, there are in this case numbers of incriminating circumstances, which bring home guilt of the accused-appellants. 25. We have given our anxious consideration to rival submissions and carefully perused the material on record. 26. Apart from testimony of approver and other evidence produced by the prosecution, there are in this case numbers of incriminating circumstances, which bring home guilt of the accused-appellants. There are number of circumstances which prove the factum of deep rooted business rivalry between two brothers, in which lies the genesis of the incident of one brother Sanjay Jain hatching up conspiracy with other accused to liquidate his younger brother Yuvraj Jain, which we shall deal with hereinafter. 27. The incident in the present case took place on 22.06.2005. Role of the accused-appellant Sanjay Jain @ Nawab was doubted at the earliest point of time by two employees of the deceased; Ramavtar Sharma (P.W.5) and Smt. Tripti Jain (P.W.11), whose police statements (Exhibit D-1 and Exhibit D-19) were recorded on 23.06.2005 and 24.06.2005 respectively. Smt. Shweta Jain (P.W.49) is the wife of the deceased, whose police statement (Exhibit D-80) was recorded on 26.06.2005. Accused-appellant Sanjay Jain has tried to place on record various documents in defence and has also filed an application under Section 391 Cr.P.C. to take further additional documents on record to show that his firms were also doing good business, in fact, better business than that of the deceased and therefore allegation of business rivalry cannot be believed. But we cannot ignore the overwhelming oral evidence on record which shows that differences between two brothers persisted for a long time upto the extent that their father had to partition the family business and thereafter the two brothers started running their businesses separately. Since they were trading in substantially similar items and their market and customers were common, it can be visualized why these two brothers did not see eye to eye. 28. Smt. Shweta Jain (P.W.49), wife of the deceased Yuvraj Jain has stated that her father and father of the accused Sanjay Jain and deceased Yuvraj Jain were both bank employees. Kailash Chand Pandya, her father-in-law had started business of ‘namkeen’ while he was in service of Bank of Baroda. Later when he retired, he fully involved himself into this business. He took Shop No. 179 in Ghee Walon Ka Rasta, Johari Bazar, Jaipur on rent and started running his business from there in the name of Jain Bhujia Wala. Kailash Chand Pandya, her father-in-law had started business of ‘namkeen’ while he was in service of Bank of Baroda. Later when he retired, he fully involved himself into this business. He took Shop No. 179 in Ghee Walon Ka Rasta, Johari Bazar, Jaipur on rent and started running his business from there in the name of Jain Bhujia Wala. Sanjay Jain used to sit in the shop since 1984 in the morning and her father-in-law used to look after the business from that shop in the evening. Her husband, who was younger to Sanjay Jain, also joined the business in 1989. Her father-in-law then distributed the work between the two brothers. Sanjay Jain used to go out of Jaipur to different places like Agra, Indore, Bikaner, Beawar etc. for taking orders for the purchase of different items and her husband used to run the business from the shop. Whenever Sanjay Jain used to go out of Jaipur, he used to take his wife Rashmi Jain also with him and usually used to return back for as long as 5-10 days. Her husband Yuvraj used to object to this by saying that Sanjay was not fully devoting himself to his business. Owing to this, some altercations between the two brothers used to take place, which sometime even reached to the level of physical beating. Her father-in-law, Kailash Chand Pandya used to reside with Sanjay Jain. This further strained their relations. Sanjay Jain finally in 1992 ended his business relationship with Yuvraj and stopped working from the aforementioned shop and started living separately with his family in a rented house in Jawahar Nagar, Jaipur, but part of the house at Sethi Colony was used by Sanjay Jain to do his business of ‘waffers’ (potato chips). Relations between the two brothers were quite estranged. When marriage of this witness was solemnized with deceased Yuvraj on 24.02.1994, all the past events were disclosed to her by Yuvraj. She also realised this when she joined the family. Even though, Sanjay Jain started his business separately, but he continued to use trade name “Jain Bhujia Wala” for his business whereas her husband was also trading by the same name from the original shop and the customers also approached original Jain Bhujia Wala which Sanjay Jain never liked and used to directly talk to the customers. Even though, Sanjay Jain started his business separately, but he continued to use trade name “Jain Bhujia Wala” for his business whereas her husband was also trading by the same name from the original shop and the customers also approached original Jain Bhujia Wala which Sanjay Jain never liked and used to directly talk to the customers. This again gave rise to cause of fight between two brothers, which even became physical. Her father-in- law used to reside with Sanjay Jain so he stopped coming to the shop of her husband from June, 1995. 29. Shweta Jain (P.W.49) has further stated that Sanjay Jain started new firm in the name and style of M/s. Swastik Food Industries in the name of his wife Smt. Rashmi Jain for doing business of potato chips. Then, he came back to reside in the parental house in Sethi Colony. When Sanjay Jain was trading by the name of Gajab Namkeen, in 1999, Enforcement Officer of District Supply Department raided factory premises of Sanjay Jain and found that kerosene that was used in the factory was illegally procured from the ration shops. Smt. Rashmi Jain, wife of Sanjay Jain was arrested and thereafter she was released on bail. Sanjay Jain used to openly tell the people that his factory was got raided at the behest of the deceased Yuvraj Jain, her husband. Thereafter, both brothers were not on talking terms and their relations continued to be strained till Yuvraj was murdered. This witness has further stated that even her parents and members of the society and their community people tried to reconcile the dispute between two brothers, but failed. In 2000, her husband started new firm in the name of M/s. Ajab Foods from another House No. A-1, Janata Colony Extension, Agra Road, Jaipur. On this, Sanjay Jain got annoyed and started saying that the deceased had purposely used trade name ‘Ajab’ which was similar to his trade name ‘Gajab’, whose business was very good. After Yuvraj had started trading in the name of Ajab brand, some of the business of Sanjay Jain was lost to him. He pressurized Yuvraj to use any other trade name, but Yuvraj denied the same. Sanjay Jain, in order to compete business of the deceased Yuvraj, set up a new factory at RIICO Industrial Area of town Bassi in the name and style of M/s. Naman Foods. He pressurized Yuvraj to use any other trade name, but Yuvraj denied the same. Sanjay Jain, in order to compete business of the deceased Yuvraj, set up a new factory at RIICO Industrial Area of town Bassi in the name and style of M/s. Naman Foods. The invitation cards distributed for the opening ceremony of this factory did not contain names of Yuvraj or this witness or their children. Sanjay Jain rather said to people that for him, Yuvraj Jain was dead. Competition between two brothers in their business in the name and style of ‘Gajab Namkeen’ and ‘Ajab Namkeen’ became stiffer. While sale of ‘Ajab Namkeen’ had substantially increased in the years 2000 to 2005, sale of ‘Gajab Namkeen’ was correspondingly reduced. It is owing to this dispute that when her husband Yuvraj visited Jain Temple situated 3-4 kms. away from their house between 10.00-11.00 A.M. on 22.06.2005 in his Indica Car and after ‘darshan’ was returning back to ride the car, he was shot dead by some miscreants from point blank range. Mahendra Jain (P.W.4) informed her at 11.30 A.M. This witness has proved Exhibit P-10 and stated that Smt. Tripti Jain wife of Pukhraj (P.W. 11) and Ramavtar Sharma son of Shri Jagdish Narain (P.W.5) were working in their parent shop since 1992, thereafter with her husband in Ajab Foods since 2000, which fact she confirmed to the police vide letter dated 22.03.2006 (Exhibit P-131) written to SHO, Police Station Transport Nagar, Jaipur City. 30. Ramavtar Sharma (P.W.5) and Smt. Tripti Jain (P.W.11) both in their statements narrated story with regard to the business rivalry of the two brothers, which is substantially similar in contents and details to the one, which has been narrated by wife of the deceased, Smt. Shweta Jain (P.W. 49), therefore, contents of the same need not be repeated in detail. According to Ramavtar Sharma (P.W.5) when firm of Sanjay Jain was raided by Enforcement Officer of District Supply Department in 1999 and Smt. Rashmi Jain wife of Sanjay Jain was arrested and released on bail after 2-3 days, Sanjay Jain always held Yuvraj responsible for this raid. He in particular stated that when Yuvraj had started business of namkeen by the name of Ajab Foods, this was seriously objected by Sanjay Jain, who at that time threatened Yuvraj of dire consequences. He in particular stated that when Yuvraj had started business of namkeen by the name of Ajab Foods, this was seriously objected by Sanjay Jain, who at that time threatened Yuvraj of dire consequences. Business of Yuvraj was flourishing, which was not taken kindly by Sanjay Jain. Smt. Tripti Jain (P.W.11) has also corroborated this by making similar statement and stated that owing to this competition, the two brothers often used to fight against each other and their enmity reached at peak when Smt. Rashmi Jain wife of Sanjay Jain was arrested in the raid conducted by Enforcement Officer of District Supply Department at the factory premise of Sanjay Jain. After giving similar details of business rivalry from stage to stage between the two brothers, this witness has also stated that after Sanjay Jain had set up his business in the name and style of M/s. Gajab Namkeen, Yuvraj also started business in the trade name of M/s. Ajab Foods. Sanjay Jain threatened to kill Yuvraj. In fact, when Yuvraj went to Kahsmir with his wife on 04.06.2005, at that time he told this witness that Sanjay Jain has threatened to kill him. She has even stated that when Yuvraj was murdered, people in the market were openly saying that this has been orchestrated by Sanjay Jain. 31. Statements of these three witnesses namely Smt. Shweta Jain (P.W.49); Ramavtar Sharma(P.W.5) and Smt. Tripti Jain (P.W.11) are exactly on same line on which they gave statements to police within 2-4 days of the incident. Statements were given to police by Ramavtar Sharma and Smt. Tripti Jain on 23.06.2005 and 24.06.2005 and within four days of the incident, statement was given by Smt. Shweta Jain (P.W. 49) on 26.06.2005. The fact that initially the police did not investigate the matter from that angle and did not believe their allegation and looked for some other evidence, in the facts of the present case, does not in any manner diminish intensity of the motive and grudge which the accused Sanjay Jain had against his own younger brother Yuvraj. This has been further supplemented by two common friends of both the brothers namely Ashendra Jain (P.W.12) and Rajesh Sogani (P.W.14). This has been further supplemented by two common friends of both the brothers namely Ashendra Jain (P.W.12) and Rajesh Sogani (P.W.14). Ashendra Jain (P.W.12) has also stated that when Rashmi wife of Sanjay Jain was arrested in the raid conducted by Enforcement Wing of District Supply Department, Sanjay Jain suspected role of deceased Yuvraj Jain and that Yuvraj Jain did not have enmity with anybody, except Sanjay Jain owing to the business rivalry. Rajesh Sogani (P.W.14) has also made statement similar to that of Ashendra Jain (P.W.12). In fact he has stated that around 1½ months before the incident, Yuvraj told him that his elder brother Sanjay Jain was angry with him and threatened him of dire consequences. Once Sanjay had threatened Yuvraj in the presence of this witness. Sanjay Jain believed that Enforcement Wing of District Supply Department at the instance of the deceased Yuvraj Jain conducted raid at his factory premise which led to arrest of his wife Rashmi Jain. Father-in-law of Yuvraj tried to mediate between two brothers to resolve the dispute but failed. This witness stated that Yuvraj did not have any business rivalry with any other person, except Sanjay Jain. Vishnu Dev (P.W.44), who conducted raid at factory premises of Sanjay Jain under the provisions of Essential Commodities Act, has also been produced by the prosecution. He stated that he at that time was investigating officer of the case instituted against Smt. Rashmi Jain for the offence under Section 3/7 of the Essential Commodities Act for which she was arrested. He stated that Enforcement Inspector lodged a report against Smt. Rashmi Jain in Police Station Transport Nagar on 02.11.1999, investigation of which was conducted by him. Copy of FIR was Exhibit P-123 and charge sheet against Smt. Rashmi Jain was filed for offence under Section 3/7 of the Essential Commodities Act, which is Exhibit P-94. We have gone through the cross-examination of all the aforementioned witnesses namely, Shweta Jain (P.W.49); Ramavtar Sharma (P.W.5); Smt. Tripti Jain (P.W.11); Ashendra Jain (P.W.12) and Rajesh Sogani (P.W.14) and found that they have remained unshaken in their cross-examination so far as aforesaid aspect of the matter is concerned. 32. In a case where the offence is proved by direct evidence, the motive is inconsequential and fails being insignificant. However, when a case is founded entirely on circumstantial evidence, motive assumes significance. 32. In a case where the offence is proved by direct evidence, the motive is inconsequential and fails being insignificant. However, when a case is founded entirely on circumstantial evidence, motive assumes significance. Though, the offence cannot be proved merely on the basis of motive, but it certainly lends credence to other incriminating circumstances to bring home guilt of the accused. It is therefore that we have at the outset discussed the evidence on the point of motive and the hatred between two brothers, which acquired such great proportions that it eventually led to unfortunate murder of one brother by another brother. 33. The Supreme Court in Amitava Banerjee @ Amit @ Bappa Vs. State of West Bengal, (2011) 12 SCC 554 held that motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. But yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the Courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence. Human nature being what it is, it is often difficult to fathom the real motivation behind the commission of a crime. And yet experience about human nature, human conduct and the frailties of human mind has shown that inducements to crime have veered around to what Wills has in his book "Circumstantial Evidence" said: "The common inducements to crime are the desires of revenging some real or fancied wrong; of getting rid of rival or an obnoxious connection; of escaping from the pressure of pecuniary or other obligation or burden of obtaining plunder or other coveted object; or preserving reputation, either that of general character or the conventional reputation or profession or sex; or gratifying some other selfish or malignant passion." 34. The Supreme Court in Suresh Chandra Bahri Vs. State of Bihar with Gurbachan, (1995) Supp (1) SCC 80 held that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. 35. We will have to therefore now discuss those incriminating circumstances to prove that conspiracy of murder of Yuvraj was hatched up by Sanjay Jain in collusion with other co-accused. 36. The prosecution in the present case has heavily relied upon the testimony of the approver, Luvkush Lamba (P.W.23). However, before we proceed to discuss his testimony, we have to deal with argument of the defence that pardon has wrongly been granted to Luvkush Lamba as he turned approver belatedly after recording statements of 22 witnesses, realizing that evidence produced by the prosecution also implicated him. Even according to defence, he is the principal accused, who conspired to murder of Yuvraj and he did so at the instance of none other than Smt. Shweta Jain, wife of deceased Yuvraj Jain. His statement in the Court as P.W.23 is contrary to his statement recorded before Chief Judicial Magistrate under Section 164 Cr.P.C. (Exhibit P-40). None of the aforesaid arguments can be countenanced as they are wholly unfounded. 37. The Supreme Court in Mrinal Das and Others (supra) was dealing with a case where there was four years delay from the date of incident seeking pardon and turning approver. None of the aforesaid arguments can be countenanced as they are wholly unfounded. 37. The Supreme Court in Mrinal Das and Others (supra) was dealing with a case where there was four years delay from the date of incident seeking pardon and turning approver. Dealing with effect and credibility of testimony of approver, it was held by the Supreme Court that pardon can be sought and tendered at any time of the case but before judgment. Approver, who was granted pardon in that case, was one of 13 accused charged for offence of murder and he categorically narrated entire occurrence right from its inception, thus making a full and true disclosure of circumstances within his knowledge. He asserted that he repented the act and had lost his mind and his decision to disclose was voluntary. Besides, his testimony was corroborated by other eyewitnesses in all aspects and he identified all the accused in Court by name and face. The Supreme Court in that case held that though a conviction is not illegal merely because it proceeds on uncorroborated testimony of an approver, yet universal practice is not to convict upon testimony of an accomplice unless it is corroborated in material particulars. Insistence upon corroboration is based on rule of caution and is not merely a rule of law. So, corroboration need not be in form of ocular testimony of witnesses and may even be in form of circumstantial evidence. Once evidence of approver is held to be trustworthy, it must be shown that story given by him so far as an accused is concerned, must implicate accused concerned in such manner as to give rise to a conclusion of guilt beyond reasonable doubt, held the Supreme Court. 38. The Supreme Court in Chandra Prakash Vs. State of Rajasthan, (2014) 8 SCC 340 while dealing with the question of corroboration of an approver held that corroboration might be direct or by circumstantial evidence and the story of approver must be credible, independent corroboration of every particular circumstance is not necessary. Evidence of approver and corroborating pieces of evidence need not be treated in two different compartments. The Supreme Court in State of Rajasthan Vs. Evidence of approver and corroborating pieces of evidence need not be treated in two different compartments. The Supreme Court in State of Rajasthan Vs. Balveer alias Balli and Another, (2013) 16 SCC 321 reversed the finding of this Court in a case of gang rape and murder, acquitting the accused on the ground that testimony of approver could not be accepted as he had not inculpated himself in crime in his statement recorded under Section 164 Cr.P.C. or in his statement before the CJM for grant of pardon under Section 306 Cr.P.C. and still he was not privy to crime, he cannot be held to be an approver. Besides, his evidence was not supported by other circumstantial evidence. It was held by the Supreme Court that approach and findings of this Court were completely erroneous. Evidence of approver given at trial is corroborated by his statement made before SHO and recorded in FIR soon after the incident. There was also direct and circumstantial evidence, independent from evidence of approver, in support of prosecution story given by him to connect other two accused in offence of rape and murder. Minor inconsistencies in evidence and contradictions in statements, are not material enough to doubt story given out by the approver that respondents committed rape on deceased and then killed her. The Supreme Court in that case held that extent of culpability of accomplice in an offence is not material for grant of pardon so long as Magistrate tendering pardon believes that accomplice was involved directly or indirectly in or was privy to offence. When pardon is tendered to an accomplice under Section 306 C.P.C., accomplice is removed from category of co-accused and put into category of witness and evidence of such a witness as accomplice can be basis of conviction as provided in Section 133 of the Indian Evidence Act. As a rule of prudence, however, as provided in Illustration III (b) to Section 114 of the Indian Evidence Act, court will presume that accomplice is unworthy of credit, unless his testimony is corroborated in material particulars. 39. The Supreme Court in Yakub Abdul Razak Memon Vs. As a rule of prudence, however, as provided in Illustration III (b) to Section 114 of the Indian Evidence Act, court will presume that accomplice is unworthy of credit, unless his testimony is corroborated in material particulars. 39. The Supreme Court in Yakub Abdul Razak Memon Vs. State of Maharashtra through CBI, Bombay, (2013) 13 SCC 1 observed that the object of Section 306 Cr.P.C. is to tender pardon in cases where a grave offence is alleged to have been committed by several persons so that the offence could be brought home with the aid of the evidence of the person pardoned. The legislative intent of this provision is, therefore, to secure the evidence of an accomplice in relation to the whole of the circumstances, within his knowledge, related to the offence and every other person concerned. The Supreme Court in Bangaru Laxman Vs. State (Through CBI) and Another, (2012) 1 SCC 500 held that purpose of grant of pardon is not to judge extent of culpability of person pardoned but to prevent failure of justice by not allowing offender to escape from lack of evidence. 40. Adverting back to the facts of the present case, Luvkush Lamba (P.W.23) has stated that he first of all met Rajendra Kumar Jain in 2001 in showroom in Ratan House in New Market in Bhopal. His brother Sanjay Lamba was employee in that showroom. He also used to sometime go with his brother. During that period, Rajendra Kumar Jain told him that he (this witness) should come to Jaipur and start his business by taking goods from him on credit basis. Rajendra Kumar Jain then gave his address. Luvkush Lamba came to Jaipur after fortnight. He met Rajendra Kumar Jain at his shop. He took goods from him and went to Bhopal and resold them in Bhopal and Gwalior. In this manner, he started taking goods from him on credit basis to earn his livelihood by trading. He went to sell the goods on certain occasions with Rajendra Kumar Jain also. In January, 2005, Rajendra Kumar Jain called him to Jaipur. This witness met him in his shop. Rajendra Kumar Jain asked this witness that could he procure arms from his State. This witness agreed to procure arms for Rajendra Kumar Jain. He went to sell the goods on certain occasions with Rajendra Kumar Jain also. In January, 2005, Rajendra Kumar Jain called him to Jaipur. This witness met him in his shop. Rajendra Kumar Jain asked this witness that could he procure arms from his State. This witness agreed to procure arms for Rajendra Kumar Jain. Rajendra Kumar Jain told him that he wanted three firearms specifying to be one country made pistol, one country made six round revolver and one country made 315 bore katta. Rajendra Kumar Jain gave him a sum of Rs. 15,000/-. On this witness being enquired from Rajendra Kumar Jain as to why he wanted to purchase firearms, to which he merely said that he wanted the firearms, but did not give any specific reason. This witness went to Gwalior. Two boys of U.P. met him in a tea shop. He (this witness) knew that they were dealing in illicit weapons. When he asked these boys, they called him to an S.T.D. Booth in the evening on that day and showed him the firearms. They demanded a sum of Rs. 80,000/- for all the firearms. This witness informed Rajendra Kumar Jain on telephone about this. Rajendra Kumar Jain promised to pay the entire money and insisted that he should get these weapons. He (this witness) gave a sum of Rs. 15,000/- to the abovementioned boys as advance and promised to make remaining payment. He reached with the firearms to Jaipur on the following day and handed over the weapons to Rajendra Kumar Jain at his shop, who made payment of Rs. 65,000/- in the evening. At this stage also, he enquired from Rajendra Kumar Jain as to why he had purchased weapons, but he did not give any specific answer. He on that very night returned back to Gwalior and made payment of Rs. 65,000/- to those two boys. Thereafter, in second week of January, he again went to Rajendra Kumar Jain for buying goods. Rajendra Kumar Jain introduced him to one Rakesh Tank. He returned back to Gwalior in the night. 41. Luvkush Lamba (P.W.22) further stated that in third week of January, 2005, this witness (Luvkush Lamba) made a telephonic call to Rajendra Kumar Jain and informed that he was coming to Jaipur on the following day and that Rajendra Kumar Jain should meet him at bus stand. He returned back to Gwalior in the night. 41. Luvkush Lamba (P.W.22) further stated that in third week of January, 2005, this witness (Luvkush Lamba) made a telephonic call to Rajendra Kumar Jain and informed that he was coming to Jaipur on the following day and that Rajendra Kumar Jain should meet him at bus stand. On the very same day Rajendra Kumar Jain met him at bus stand. They had tea together. Luvkush Lamba told Rajendra Kumar Jain that he was in dire need of a sum of Rs. 10,000/-. Accused said that though presently he was not having money but he could arrange through someone else. Rajendra Kumar Jain made a telephonic call to someone from the STD booth and told this witness that money has been arranged and he would get the same in an hour or two. Rakesh Tank came to the shop of Rajendra Kumar Jain at around 8.45-9.00 A.M. He saw that Rakesh Tank took a sum of Rs. 10,000/- out of his pocket and handed over to Rajendra Kumar Jain, who on that very point of time gave that amount to Luvkush Lamba. In first week of February, 2005 again Rajendra Kumar Jain telephonically called Luvkush Lamba to Jaipur on the promise that he would get him good business. This witness (Luvkush) was also known as Love Kumar, who was very close to him. When he (Luvkush Lamba) met Rajendra Kumar Jain at his shop, he told that Sanjay Jain was a very close friend of him, who was also known as Nawab. Sanjay wanted to get his enemy liquidated and therefore he had purchased weapons on being required by him. He told that Sanjay Jain wanted to meet Luvkush Lamba (this witness). He too insisted to meet Sanjay Jain. On this, Rajendra Kumar Jain went to make a phone call and after some time returned back. After about 45 minutes, Sanjay Jain came to shop of Rajendra Kumar Jain. Rajendra Kumar Jain introduced Sanjay Jain to Love Kumar. Sanjay Jain confirmed Luvkush Lamba that in fact he had asked Rajendra Kumar to procure weapons as he wanted to liquidate his enemy, but he was unable to do so. He told that he shall pay a sum of Rs. 3,00,000/-. He asked this witness that either he (Luvkush Lamba) murder him or he should hire someone to do so. Sanjay Jain confirmed Luvkush Lamba that in fact he had asked Rajendra Kumar to procure weapons as he wanted to liquidate his enemy, but he was unable to do so. He told that he shall pay a sum of Rs. 3,00,000/-. He asked this witness that either he (Luvkush Lamba) murder him or he should hire someone to do so. Luvkush Lamba further stated that when he enquired from Sanjay Jain as to whom he wanted to murder, Sanjay Jain did not disclose name and rather told that when the occasion comes, he would inform the name of such person to Luvkush Lamba also. Sanjay Jain wanted that this task should be accomplished by Luvkush Lamba. Luvkush Lamba told Sanjay Jain that he shall come back to him on the following day. This witness further stated that he went to his two friends Sonu Yadav and Ghanshyam, who were staying in a rented house of their sister in Janata Colony, Jaipur. He told them in detail that someone wanted to get a person murdered in lieu of amount of Rs. 3,00,000/-. Sonu insisted on meeting that person. That night he (Luvkush Lamba) stayed with Sonu and Ghanshyam. Following day, he took both of them to the shop of Rajendra Kumar Jain and introduced them to him. Rajendra Kumar Jain asked them to stay in the shop and he went to make a phone call to Sanjay. After some time he returned back. Sanjay Jain came to the shop of Rajendra Kumar Jain in about half an hour. This witness then stated that he told Sanjay that these two persons were ready to do his work and that he should settle the amount. In that meeting, a sum of Rs. 3,00,000/- was settled as the amount for contract killing. He (Luvkush Lamba) further stated that in that meeting, he even asked Sanjay Jain as to whom he wanted to get murdered. Sanjay Jain told him that this was none of his business and that he would tell them on appropriate time who that person was. Sanjay left the shop of Rajendra Kumar Jain after that meeting. This witness (Luvkush Lamba) left for Gwalior in the night on that day. 42. Luvkush Lamba (P.W.22) had further stated that Sonu and Ghanshyam took a rented room in House No. 40 of Ashok Kumar Meena situated in Sawai Pav Ki Baghichi on 15.02.2005. Sanjay left the shop of Rajendra Kumar Jain after that meeting. This witness (Luvkush Lamba) left for Gwalior in the night on that day. 42. Luvkush Lamba (P.W.22) had further stated that Sonu and Ghanshyam took a rented room in House No. 40 of Ashok Kumar Meena situated in Sawai Pav Ki Baghichi on 15.02.2005. They told this fact to him on phone. Luvkush Lamba then stated that he used to come to Jaipur every 5th or 6th day. He went to the room of Sonu and Ghanshyam and then went to the shop of Rajendra Kumar Jain and gave him their address. Thereafter, he received a telephonic call from Rajendra Kumar Jain in between 15th to 20th March, who called him (Love Kumar) to Jaipur. This witness told him that he would come to Jaipur on the following day. On the following day, this witness (Luvkush Lamba) met Rajendra Kumar Jain at his shop. Then, Rajendra Kumar told him (Luvkush Lamba) that he along with Sonu and Ghanshyam should meet him near Minerwa Cinema between 8.00 A.M. -1.00 P.M. on the following day so that he could show them the person, who was to be murdered. He (Luvkush Lamba) went to the room of Sonu and Ghanshyam and told them about the aforesaid. As agreed, on that night, he (Luvkush Lamba) stayed in the room of Sonu and Ghanshyam and on the following morning at around 8.45 A.M., all three went to Minerwa Cinema. This witness (Luvkush Lamba) asked Sonu to make a telephonic call and asked Rajendra Kumar Jain and Sanjay Jain as to in how much time they were reaching there. Sonu from STD booth near BMB Hotel telephonically informed Rajendra Kumar Jain, who stated that they were coming in about 15 minutes time. After some time, Sanjay Jain and Rajendra Kumar Jain came there in a Wagon-R car. Sanjay was driving the vehicle and Rajendra Kumar Jain was sitting by his side. All three of them sat in the rear seat of the vehicle. Sanjay moved the car in the direction of Agra Road and then showed them a factory in Janata Colony and told that they could murder the targeted person near the turn of the factory. Sanjay was driving the vehicle and Rajendra Kumar Jain was sitting by his side. All three of them sat in the rear seat of the vehicle. Sanjay moved the car in the direction of Agra Road and then showed them a factory in Janata Colony and told that they could murder the targeted person near the turn of the factory. Then, he took the vehicle further towards Sethi Colony and then showed a Jain Temple situated in that colony and told that their targeted person daily comes in the morning to this temple, they could murder him here as well. Then they showed them House No. 70 of Sethi Colony and vehicle Indica Car of slaty colour parked outside the house and told that this was his vehicle. Then, Sanjay Jain stopped Maruti Wagon-R at some distance on the turn and parked it there and told that the person, who was to be murdered, would soon come out of the house and they should carefully see his face. Rajendra Kumar Jain and Sanjay Jain alighted from the vehicle whereas other three remained sited therein. After some time, a person came out of the house. Soon thereafter, Rajendra Kumar Jain and Sanjay Jain moved the car in the direction of that house and showed them the face of the person. Sanjay Jain told that they should carefully see the face of this person and should not forget him. Sonu Yadav then assured Sanjay Jain that once they see the face of someone, they won’t forget him. Sanjay then dropped them near Minerwa Cinema and asked Rajendra Jain to take all the persons to the shop and said that he would come after parking the car. All four of them went to the shop of Rajendra Kumar Jain. After some time, Sanjay Jain also reached there. Sanjay Jain told him (Luvkush Lamba) that often he asked him who this person was and why he wanted to get him murdered, therefore, he wanted to clear that name of this person was Yuvraj Jain and he was also doing the business of ‘namkeen’. Earlier his business was flourishing but because of business of this person, he had suffered huge losses in business and that this person was his younger brother and now that he had made everything clear to them and they should accomplish this work as early as possible. Earlier his business was flourishing but because of business of this person, he had suffered huge losses in business and that this person was his younger brother and now that he had made everything clear to them and they should accomplish this work as early as possible. Luvkush Lamba then further stated that at this stage he even asked Sanjay Jain, why should he get his own brother murdered for the sake of business? Sanjay Jain told Luvkush Lamba that he should be concerned with his own work. It is his personal matter and that he (Luvkush Lamba) should mind his own business. On this, Sonu Yadav told Sanjay Jain that they were not concerned with whom he wanted to get murdered, they were only concerned with their work. Even when their conversation was going on, Rakesh Tank, who was known to him (Luvkush Lamba) from before came there and he shook hand with Luvkush Lamba, whom he had earlier loaned a sum of Rs. 10,000/-. Rakesh Tank gave a kundan gold locket to Rajendra Kumar Jain and went away. Thereafter, Sanjay Jain also left. Sonu and Ghanshyam then left separately. 43. Luvkush Lamba (P.W.23) further stated that he came back to Gwalior in the evening. Sonu Yadav came to Gwalior at around 15th or 20th of April. He purchased a 315 bore country made katta for a sum of Rs. 2,000/-. He also bought cartridges of the katta. When this witness, Luvkush Lamba came to Jaipur in April, they both (Sonu and Ghanshyam) showed to him this katta. When he met Rajendra Kumar Jain, he told him that he was aware of the katta purchased by Sonu and Ghanshyam and said that these persons were staking out Yuvraj. In the month of May, 2005, when he (Luvkush Lamba) came to Jaipur, he went to room of Sonu and Ghanshyam situated in Sethi Colony. They took him (Luvkush Lamba) to the house of Yuvraj Jain. They stood outside his house for quite some time. Yuvraj Jain came there at about 10.30- 10.45 A.M. and stopped his Indica Car in front of his house. He and his wife alighted from his vehicle. There were two small children also. Sonu told Luvkush Lamba that they could murder Yuvraj Jain at this place and run away from there. They stood outside his house for quite some time. Yuvraj Jain came there at about 10.30- 10.45 A.M. and stopped his Indica Car in front of his house. He and his wife alighted from his vehicle. There were two small children also. Sonu told Luvkush Lamba that they could murder Yuvraj Jain at this place and run away from there. On this, he (Luvkush Lamba) told him that it was risky because his wife also stayed here with him and she could raise hue and cry. Sonu then told him (Luvkush Lamba) that whoever comes in between, he would also be murdered. Thereafter, they returned to their room. Luvkush Lamba told them not to think of killing Yuvraj at his house. He even told Rajendra Kumar Jain and Sanjay about this. Thereafter, Luvkush Lamba along with Sonu went to the shop of Rajendra Kumar Jain, who enquired why they were taking too long. On this, he (Luvkush Lamba) told Rajendra Kumar Jain that Sonu and Ghanshyam were contemplating to murder Yuvraj Jain at his home where he was staying with his wife and that he (Luvkush Lamba) forbade them from doing so. Rajendra Kumar Jain told him (Luvkush Lamba) that they would discuss this situation at the room of Sonu and Ghanshyam in the evening on that day. Sanjay Jain and Rajendra Kumar Jain both came to the room of Sonu and Ghanshyam in the evening and stayed there for quite some time. Sanjay Jain insisted why these persons were delaying the work. Sonu then told Sanjay Jain that Love Kumar (Luvkush Lamba in his own statement mentioned himself as Love Kumar at different places) was refusing them to commit murder in the house of Yuvraj. Luvkush Lamba then explained the reason to Sanjay Jain that it was risky to murder in the house where he was staying with his wife and children. Sanjay Jain then asked these persons to murder him near Jain Temple and they could easily run away from there. Sanjay Jain while leaving insisted that they should finish this task at the earliest. Then both left. Luvkush Lamba also came to Gwalior on the following day. Sanjay Jain then asked these persons to murder him near Jain Temple and they could easily run away from there. Sanjay Jain while leaving insisted that they should finish this task at the earliest. Then both left. Luvkush Lamba also came to Gwalior on the following day. Luvkush Lamba further stated that he used to come to Jaipur after every 5th and 6th day and meet Sanjay Jain, Rajendra Kumar Jain, Sonu Yadav sometime in the shop of Rajendra Kumar Jain and sometime in the room of Sonu where they used to discuss/plan for committing murder of Yuvraj Jain. On 11.06.2005, Rajendra Kumar Jain made a telephonic call to Luvkush Lamba. He told that all the planning has been done and he (Luvkush Lamba) should immediately come to Jaipur. As per Luvkush Lamba, he reached Jaipur on 12.06.2005 and met Rajendra Kumar Jain at his shop, who told him that finally it has been decided that Yuvraj Jain should be murdered near Jain Temple and that they would meet in evening in the room of Sonu and Ghanshyam where he (Rajendra Kumar Jain) would come along with Sanjay Jain. Then in the night, Rajendra Kumar Jain and Sanjay Jain came to the room of Sonu and Ghanshyam and the entire plan was discussed there. It was also decided that room shall be vacated immediately thereafter. Rajendra Kumar Jain asked him (Luvkush Lamba) that he along with Sonu and Ghanshyam should also carefully see the area around the Jain Temple for next 4-5 days for understanding the topography. 22.06.2005 was decided as the date for committing murder of Yuvraj Jain. Sanjay Jain and Rajendra Kumar Jain left after this meeting. 44. Luvkush Lamba (P.W.23) has then stated that in their stake out, they found that Yuvraj Jain was regularly coming to temple in the morning at around 10.15 or 10.30 A.M. or even at 10.45 A.M. He used to park his car outside the temple and go inside the temple for darshan. As per plan, Sonu Yadav carried 315 bore country made katta, which he purchased from Gwalior. Sonu and Ghanshyam went to Jain Temple on bicycle. Luvkush Lamba went on foot. They stood there by maintaining some distance. While Ghanshyam was standing near telephone pole in the lane adjoining the temple with the bicycle, Sonu was standing at some distance from him. Sonu and Ghanshyam went to Jain Temple on bicycle. Luvkush Lamba went on foot. They stood there by maintaining some distance. While Ghanshyam was standing near telephone pole in the lane adjoining the temple with the bicycle, Sonu was standing at some distance from him. Luvkush Lamba further stated that as per plan, he was standing in front of a dhaba slightly away from the temple. They were having an eye on each other. They saw Indica Car of Yuvraj Jain coming towards Jain Temple around 11.00 A.M. They became alert. Yuvraj Jain came and stopped his car near the temple and went inside the temple. Sonu Yadav came closer to the car. After about 10- 15 minutes when Yuvraj came out of the temple and opened the door of his car, Sonu Yadav swiftly came closer to him from behind and opened fire at the back of his head from close range by 315 bore country made katta and then ran away towards the lane adjoining the temple where Ghanshyam was waiting for him with bicycle. He (Luvkush Lamba) further stated that on seeing the incident actually happening, he became perturbed and caught a mini bus going towards Sanganeri Gate and straightway went to the shop of Rajendra Kumar Jain and told him that Sonu Yadav has murdered Yuvraj Jain. Rajendra Kumar Jain made him (Luvkush Lamba) comfortable and gave him a glass of water to drink. After about 1½-1¾ hours, Sonu and Ghanshyam came to the shop of Rajendra Kumar Jain after changing their clothes. Sonu then told Rajendra Kumar Jain that they had done his work and he should tell them when and where the money would be given. Rajendra Kumar Jain thereupon told Sonu that these people should call him on telephone in the morning after two days and he would indicate as to where they would get their money. Rajendra Kumar Jain warned Sonu, Ghanshyam and him (Luvkush Lamba) that none of them should even by mistake call Sanjay Jain on his cell phone and they should talk to him (Rajendra Kumar Jain) only. Luvkush Lamba further stated that all three of them went to the house of Sonu’s sister situated at Janta Colony to hide themselves. Rajendra Kumar Jain warned Sonu, Ghanshyam and him (Luvkush Lamba) that none of them should even by mistake call Sanjay Jain on his cell phone and they should talk to him (Rajendra Kumar Jain) only. Luvkush Lamba further stated that all three of them went to the house of Sonu’s sister situated at Janta Colony to hide themselves. On 25.06.2005, Sonu Yadav alone came out of the house to make a phone call to Rajendra Kumar Jain and after returning back, informed him (Luvkush Lamba) and Ghanshyam that Rajendra Kumar Jain had called them in his shop in the evening at 7.15 P.M. for payment and soon after collecting the money, they would leave for Gwalior. Luvkush Lamba also stated that Sonu Yadav had thrown katta, which he used to murder Yuvraj at the place of incident only and this fact was told to them when he came to the shop of Rajendra Kumar Jain. He also told that he along with Ghanshyam ran away from the place of incident on bicycle. When they went to shop of Rajendra Kumar Jain at about 6.45 P.M. on 25.06.2005, Rakesh Tank was also sitting with Rajendra Kumar Jain. Sanjay Jain also came there after about five minutes. He handed over a white packet to Rajendra Kumar Jain and asked him (Rajendra Kumar Jain) that this was the money for the work, which he got done for him and then went away. Sanjay Jain did not talk to anyone of them and hurriedly left after handing over the packet to Rajendra Kumar Jain. Rajendra Kumar Jain opened the envelope, in which there were packets of currency notes of Rs.500/- each. At that time, he (Luvkush Lamba) told Rajendra Kumar Jain that amount of Rs. 10,000/-, which he borrowed from Rakesh Tank, should be returned. Rajendra Kumar paid a sum of Rs. 10,000/- to Rakesh Tank, who then left. He (Rajendra Kumar Jain) gave a sum of Rs. 1,00,000/- each to Sonu and Ghanshyam and a sum of Rs. 90,000/- to him (Luvkush Lamba). Sonu Yadav then enquired from Rajendra Kumar Jain that would he not take any share out of this money. Rajendra Kumar Jain thereupon told that he had borrowed a sum of Rs. 1,00,000/- from Sanjay Jain, in lieu of which he had given four cheques and after this work, that money/loan shall stand repaid. 90,000/- to him (Luvkush Lamba). Sonu Yadav then enquired from Rajendra Kumar Jain that would he not take any share out of this money. Rajendra Kumar Jain thereupon told that he had borrowed a sum of Rs. 1,00,000/- from Sanjay Jain, in lieu of which he had given four cheques and after this work, that money/loan shall stand repaid. He smilingly told that he had a separate account with Sanjay Jain. All three of them left Jaipur via Gwalior Bye Pass in the night and then went in different directions. Then, he (Luvkush Lamba) came to his sister and brother-in-law’s house in village Kitola Bazar Sevra situated near Jabalpur and started living there, wherefrom the police arrested him (Luvkush Lamba) in the night of 11.02.2006 and brought him to Jaipur on 13.02.2006. 45. Luvkush Lamba has been subjected to intensive and lengthy cross-examination separately by the defence counsel of each accused and remained unshaken. He stood by the story, which he narrated in his examination-in-chief. His testimony finds sufficient corroboration from many prosecution witnesses, which we shall discuss hereinafter. 46. Sanjay Jain and Rajendra Kumar Jain were known to each other, has been proved by Ratan Lal Jain (P.W.46), according to whom, both of them stayed together as tenant in his house situated at 1-kha- 21, Jawahar Nagar, Jaipur. He has proved that Sanjay Jain came to reside in the garage portion of this house in August, 1992 and stayed there for about 2½ years. Rajendra came to stay as tenant in his house on 01.04.1993. He has stated that for both of them, rent note or rent agreement was not executed but since Rajendra Kumar Jain picked up quarrel with another tenant on the first floor, a rent deed was executed, copy of which he gave to the police, which is Exhibit P-128. The fact that Ratan Lal Jain (P.W.46) has been rather than saying that a child was born to accused Sanjay Jain while he was his tenant in his garage portion of the house, if has stated that he had a son aged about one year does not make any difference in the evidenciary value of his statement because in either case, what is intended to be conveyed is that he had a son aged about one year. There was meeting of mind between the accused persons which has been proved by Luvkush Lamba (P.W.23), which finds corroboration with the statement of Ashok Kumar Meena (P.W.16), landlord of the house where the accused Sonu and Ghanshyam had taken a room on rent. This witness has corroborated statement of Luvkush Lamba (P.W.23) that accused Sanjay Jain and Rajendra Kumar Jain visited them, i.e. Ghanshyam, Sonu and Luvkush Lamba, in the room of his house. Ashok Kumar Meena (P.W.16) has stated that the accused Sonu and Ghanshyam, residents of Madhya Pradesh, came to him on 14.02.2005 to take a room on rent of Rs. 900/- per month and they occupied the same on 15.02.2005. This house was in the name of his mother and they gave advance rent of one month to him. He further stated that a boy frequently visited them during last ten days of their stay, whose name was Luvkush Lamba, who was also resident of Madhya Pradesh. This witness came to know about the name of aforesaid boy when he enquired about him from Sonu and Ghanshyam. On 22.06.2005, suddenly they vacated the room and left. Luvkush Lamba (P.W.23) was staying with them for last ten days. During these ten days, two more persons used to meet them at around 8.00-9.00 P.M. They came 2-3 times. Their names were Rajendra Jain aged about 50 years and Sanjay Jain aged about 40 years. Even this witness has produced a rent note (Exhibit P-17). In cross-examination, it was put to him that why did he obtain rent agreement from them, he stated that normally when the tenant is native of some other State, he by way of precaution, gets the rent agreement/rent note executed. This witness was subjected to cross-examination but he stood firm to what he stated in his examination-in-chief. The prosecution has produced Ram Narain (P.W.15), STD booth owner, whose telephone numbers were 2609996 and 2618322. He has identified accused Sonu and Ghanshyam as those two boys who used to frequently visit his shop and make telephone calls. They normally paid in cash but once they did not have cash therefore they made telephonic call on credit. On enquiry they told that they were residing in a rented accommodation in Sawai Pav Ki Baghichi, near Janata Colony, but suddenly after June, 2005, they stopped coming. 47. They normally paid in cash but once they did not have cash therefore they made telephonic call on credit. On enquiry they told that they were residing in a rented accommodation in Sawai Pav Ki Baghichi, near Janata Colony, but suddenly after June, 2005, they stopped coming. 47. Mahendra Pal Singh (P.W.48), Assistant Manager (Legal), Bharati Hexacom Limited has also been produced to prove call details of mobile phone of Sanjay Jain bearing no. 9829060812 and to show that the accused made telephonic call on the aforesaid number from STD booth of Ram Narain (P.W.15) on 12th June, 13th June, twice on 14th June and 20th June, but since the defence has relied on the judgment of the Supreme Court in Anvar P.V. (supra) and argued that in the absence of requisite certificate under Section 65(4)(b) of the Indian Evidence Act, call details of the cell phone of the accused Sanjay Jain contained in Exhibits P-129 and P-130 cannot be read in evidence, we eschew such call details from consideration, but nevertheless evidence of Ram Narain (P.W.48) that accused Sonu and Ghanshyam used to visit his STD booth frequently and disclosed to him where they were staying and the fact that he has identified them, proves at least one thing that they were residing in the rented accommodation in Sawai Ka Pav Bagichi near Janata Colony, Jaipur, which has also been proved by Ashok Kumar Meena (P.W.16). Conduct of the accused that they vacated the room in the house of Ashok Kumar Meena (P.W.16) immediately after the incident and also that they left attending their job with Chaman Agarwal (P.W.12) Manager of the canteen in the Government Secretariat also provides corroboration to what has been stated by him. Chaman Agarwal (P.W.12) has proved attendance register of workers of his canteen (Exhibit P-22) wherein he has proved his signatures from place ‘c’ to ‘d’. He has stated that word “P” was marked against the names of those who attended the canteen and word “A” was marked against the names of those who were absent from canteen. Ghanshaym Yadav came to work with him in January, 2003. This witness correctly identified accused Ghamshyam Yadav in the Court. He worked with him for about 10-12 months and then he went to his native place. He returned back after 5-6 months and this witness again engaged him. Ghanshaym Yadav came to work with him in January, 2003. This witness correctly identified accused Ghamshyam Yadav in the Court. He worked with him for about 10-12 months and then he went to his native place. He returned back after 5-6 months and this witness again engaged him. Thereafter, he worked for more than one year and again left. He returned in November, 2005 and again left in January, 2006 and thereafter he never came back. This witness further stated that he took Sonu Yadav in his employment on recommendation of Ghanshyam in January, 2005, who worked for about 4-5 months and then left. Even this witness has been subjected to thorough cross-examination, but he remained firm during that process. 48. Hardeep Rai Batra (P.W.53), Senior Branch Manager, Bank of Baroda, Adarsh Nagar Branch, Jaipur proved the fact that accused Sanjay Jain initially had current account in their branch which was opened on 07.03.2005 and was closed on 09.07.2005 but subsequently, he opened saving account on 07.06.2005 which too was closed on 16.07.2005. Address of B-70, Sethi Colony, Jaipur was given by him. He withdrew a sum of Rs. 7,00,000/- from that account on 14.06.2005 by cheque. Relevant copy of ledger was Exhibit P-155 and cheque was Exhibit P-156 information of which he gave to the police vide letter dated 20.03.2006 (Exhibit P-151). A sum of Rs. 9,00,000/- on 10.06.2005; Rs. 4,00,000/- on 12.06.2005; Rs. 3,00,000/- on 14.06.2005 and again Rs. 9,00,000/- on 27.06.2005 were transferred from current account no. 301893 of M/s. Naman Trading Company to the abovementioned saving account of Sanjay Jain. The cash transactions and transfer entries merely prove that Sanjay Jain was capable of paying contract amount of killing of his brother Yuvraj, but does not prove by itself any transaction. But from proven facts, an inference can be safely drawn that payment was made to Sonu, Ghanshyam and Luvkush Lamba through Rajendra Kumar Jain, by accused Sanjay Jain because he had liquidity of cash in his hands. 49. But from proven facts, an inference can be safely drawn that payment was made to Sonu, Ghanshyam and Luvkush Lamba through Rajendra Kumar Jain, by accused Sanjay Jain because he had liquidity of cash in his hands. 49. So far as Rakesh Tank (P.W.9) is concerned, his testimony stands on rather shaky ground because despite the fact that his wife happens to be first cousin of Sanjay Jain and as per the prosecution evidence, he confronted Sanjay Jain in the shop twice; firstly, when the accused came to Rajendra Kumar Jain to discuss the plan of murder of Yuvraj and secondly, when Sanjay Jain came to pay the amount in a white envelope to Rajendra Kumar Jain. Besides, he knew Luvkush Lamba, whom he loaned a sum of Rs. 10,000/- at the askance of Rajendra Kumar Jain. But even if testimony of this witness is not relied, there is otherwise sufficient clinching and convincing evidence to prove that conspiracy of killing of Yuvraj was hatched by none other than his elder brother Sanjay Jain. 50. Mahendra Kumar Jain (P.W.4) has proved the presence of Rajendra Kumar (P.W.6), constable of RAC and stated that it was Rajendra Kumar, who was standing in front of his shop and told that fire has been opened. Then this witness further stated that he saw the direction of the fire, which was coming from the side of the Jain Temple, where a person was seen falling on the ground. He immediately went to Transport Nagar Police Station on his scooter and informed the police about the incident. When the police came on the spot, they learnt that the dead body was of Yuvraj Jain, owner of M/s. Ajab Foods. He saw that apart from him, Vimal Jain and other persons were also present there. This witness has proved various memos of the prosecution such as site plan (Exhibit P-2); inspection note (Exhibit P-5), seizure of sample of controlled soil (Exhibit P-6), blood lifted from road (Exhibit P- 7); hair of head lifted from car (Exhibit P-8). He has stated that he identified the boy, who opened fire at the deceased, memo of which was Exhibit P-9. His name was Sonu @ Prem Chand Yadav. He has stated that he identified the boy, who opened fire at the deceased, memo of which was Exhibit P-9. His name was Sonu @ Prem Chand Yadav. Mere fact that in cross-examination, stray statement has fallen from him that he had seen accused Sonu in the police station would not in any manner diminish the evidenciary value of his statement. This witness first of all informed the police about the incident where he went on his own scooter. Though this witness has been declared hostile as he has not fully supported case of prosecution on the line on which he gave statement to the police under Section 161 Cr.P.C., none the less part of his testimony, which is consistent with what has been stated by remaining prosecution witnesses, especially approver Luvkush Lamba (P.W.23), can still be relied. 51. Vimal Kumar Jain (P.W.2), whose presence has been proved by Mahendra Kumar Jain (P.W.4) has also provided corroboration to testimony of Luvkush Lamba (P.W.23) because he too has narrated the manner in which the incident took place and the fact that Mahendra Kumar Jain rushed to police station to inform about the incident and the police came there. He is also attesting witness of so many memos such as site plan (Exhibit P-2); Inspection memo of car (Exhibit P-5); seizure of sample of controlled soil (Exhibit P-6); blood lifted from road (Exhibit P-7) and seizure of hair of head from top of the car (Exhibit P-8). Harsh Sharma (P.W.3) is a student, who happened to be present in a tea stall near the place of incident. He has stated that he along with his friend Pankaj was taking tea. He saw a boy, who was wearing a very dirty pant and shirt, running from the lane. He moved into the direction of corner of another lane where another boy came on bicycle and he sat on the bicycle and both of them ran away. Then he (this witness) suddenly saw the crowd assembling near Jain Temple. When they reached there they learnt that a business man has been murdered. Thus, this witness has proved part of the manner, in which the incident had taken place. Pankaj Shekhawat (P.W.7), another student, who happened to be present on the tea stall with his friend Harsh Sharma (P.W.3) has stated that he saw a boy coming from the side of their college. Thus, this witness has proved part of the manner, in which the incident had taken place. Pankaj Shekhawat (P.W.7), another student, who happened to be present on the tea stall with his friend Harsh Sharma (P.W.3) has stated that he saw a boy coming from the side of their college. This boy was looking quite perturbed and then he ran towards another boy who was standing in a lane with bicycle and then both of them ran away on the bicycle. Harsh Sharma (P.W.3) and Pankaj Shekhawat (P.W.7) both have stated that the boy, who was seen running, had earphone, which he took off after sitting on the bicycle and put the same in the pocket of his pant. Even this witness in the test identification parade (Exhibit P-12) correctly identified the accused Sonu and accused Ghanshyam vide Exhibit P-13 by saying that Sonu was the one who came running from the side of their college and Ghanshyam was the one who came and was sitting on the bicycle. 52. Rajendra Prasad (P.W.6), who happened to be present at the shop of Mahendra Kumar Jain, has also corroborated testimony of Luvkush Lamba in minute details as also the manner in which the incident had taken place. He identified both the accused Sonu and Ghanshyam in test identification parade (Exhibit P-10 and Exhibit P-11 respectively). In fact, he gave the description of the proximate height and appearance of the accused to the police. The police took assistance from Forensic Science Laboratory and got sketch of the accused prepared. Mere fact that this witness, who had a dispute in the family court and was accompanied by his wife and that he was unable to give particulars of his advocate in the family court cannot be basis to discard testimony of this witness. The fact that he did not try to catch hold of the accused while they were running also cannot be a reason to contend that his behaviour was unnatural because a person who witnesses an incident of murder by accused with use of firearm, his normal human reaction would be shock and then he would decide to chase the running accused. Besides, this witness was standing at some distance from the accused. Despite there being lengthy cross-examination by the defence on this aspect, he was consistent. The trial court cannot be said to be unjustified in relying on his testimony. Besides, this witness was standing at some distance from the accused. Despite there being lengthy cross-examination by the defence on this aspect, he was consistent. The trial court cannot be said to be unjustified in relying on his testimony. The Supreme Court in Rana Pratap & Others (supra) held that every person, who witnesses a murder, reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves removed from the spot as far as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Sanjay Saini (P.W.8) employee of Jain Temple has also proved the manner in which the incident had taken place, who had additionally stated that Kailash Chand Pandya, father of the accused Sanjay Jain used to tell him that brother of the shooter had come to Jaipur and would shoot whoever gives evidence in the case and break his legs, which part cannot be given much credence because despite statement that he gave a report against Kailash Chand Pandya to the police, he has failed to prove any such report, but nevertheless earlier part of his testimony in which he proved that as to how the incident took place is in sync with what has been stated by other prosecution witnesses including approver Luvkush Lamba (P.W.23). 53. Jagdish Narain Sharma (P.W.13), owner of Hariom Juice Centre, Jagdish Mishthan Bhandar and Tea Stall was also present at the scene of occurrence on the fateful day. He had gone to Shyam Dhaba for taking meal. Even when he was standing in front of dhaba, he saw a boy standing there, who was having his face towards Jain Temple. His height was 5½ feet and he was aged about 21-22 years. When suddenly a sound like tyre bursting was heard from the side of Jain Temple, this boy ran away from there and sat in the mini bus going towards Ghatgate. At that time, he looked perturbed. His height was 5½ feet and he was aged about 21-22 years. When suddenly a sound like tyre bursting was heard from the side of Jain Temple, this boy ran away from there and sat in the mini bus going towards Ghatgate. At that time, he looked perturbed. This witness further stated that later he came to know that somebody has murdered Yuvraj Jain and that they were two boys, who ran away on bicycle. This witness identified Luvkush Lamba in test identification parade (Exhibit P-16) conducted in jail. Bicycle, which was used in the offence was recovered at the instance of accused Ghanshyam from the house of Jagdish vide Exhibit P-24 and Kishanlal Bagerwal (P.W.19) and Jagdish Saini (P.W.20) were attesting witnesses to that recovery. Much has been argued about diaries recovered at the instance of accused Ghanshyam, Sonu Yadav and Luvkush vide Exhibit P-19 to Exhibit P-21 respectively that these diaries contained landline telephone number of Sanjay Jain, which was installed in his house subsequent to the date of incident. These diaries along with the admitted hand writing of the accused were sent to FSL and the hand writing in the diaries matched with the hand writing of the accused. Nonetheless, these diaries cannot prove anything against the accused so far as alleged incident is concerned because on that date, telephone in question was not installed. This cannot be taken as evidence against the accused. Argument of the prosecution that this proves that other accused-appellants were in constant contact of Sanjay Jain even after the incident, also cannot be considered as an incriminating circumstance against the accused-appellants. Even if this evidence is eschewed from consideration, there are many other incriminating circumstances which prove the guilt of the accused-appellants. Contention that the deceased had taken an insurance policy and his wife Smt. Shweta Jain was his nominee, cannot be a basis to infer that Smt. Shweta Jain, his own wife, conspired to murder him. 54. Even if this evidence is eschewed from consideration, there are many other incriminating circumstances which prove the guilt of the accused-appellants. Contention that the deceased had taken an insurance policy and his wife Smt. Shweta Jain was his nominee, cannot be a basis to infer that Smt. Shweta Jain, his own wife, conspired to murder him. 54. Sabir Khan (P.W.24) attesting witness to site plan of the place of incident as per the information given by accused Sonu Yadav @ Prem Chand under Section 27 of the Indian Evidence Act (Exhibit P-41) and site plan of the place of incident as per the information given by accused Luvkush Lamba (Exhibit P-36) has also proved recovery of one country made pistol and five live and two empty cartridges at the instance of Sanjay Jain vide Exhibit P-42. Pistol recovered at the instance of Sanjay Jain was Article-9. It is alleged to be that pistol which Sanjay Jain procured from Rajendra Kumar Jain through Luvkush Lamba (P.W.23), but he was unable to liquidate Yuvraj Jain. Mohd. Farooq (P.W.25) is also another attesting witness to recovery of aforesaid country made pistol at the instance of Sanjay Jain. Harish Chandra Sethi (P.W.26) is attesting witness to recovery of one country made revolver, one country made katta 315 bore and 13 live cartridges from the shop of Rajendra Kumar Jain vide Exhibit P-45. 55. Richpal (P.W.28) Constable, has proved deposit of four packets in FSL vide receipt (Exhibit P-46) and Ram Khiladi (P.W.29) has proved the receipt given to him by Richpal (P.W.28) vide Exhibit P-47 and Exhibit P-48. Dr. Suman Dutta (P.W.41) has proved injury report of the deceased Yuvraj Jain (Exhibit P-114) and X-Ray Report (Exhibit P- 115). All that he has stated is that radiologist found two foreign bodies in the skull and fracture of occipital bone but this does not lead to the inference that there were two bullets in the skull although he has stated that two metallic foreign bodies were visible, which aspect has been clarified by Dr. N.L. Disania (P.W.42) that bullet was found on the frontal lobe of the head and was seal packed and sent to FSL. As per FSL Report (Exhibit P-117), firearm injury was caused from close distance. Dr. N.L. Disania (P.W.42) that bullet was found on the frontal lobe of the head and was seal packed and sent to FSL. As per FSL Report (Exhibit P-117), firearm injury was caused from close distance. Dr. Randhir Singh (P.W.56) Junior Specialist Surgery, Jaipuria Hospital has further clarified that in the X-Ray Plates of skull (Exhibit P-200 and Exhibit P-201), two radio opex shadow were visible; one was in the length of about 4 cm and width of which was about 1 cm in the frontal part. Another radio opex was visible in the mestroid part which was in the size of 1 cm x ½ cm. Both were in different places. There were, thus, two foreign bodies. However, he clarified that smaller foreign body could be part of bigger one. Bhim Singh Bhika (P.W.51) has proved that on his enquiry from Manager, UCO Bank, Zone II, Jaipur, it was found that the cheques recovered from possession of Sanjay Jain were issued from the account of Rajendra Kumar Jain. Kailash Dan (P.W.52) has proved information given by Rajendra Kumar Jain under Section 27 of the Indian Evidence Act (Exhibit P-141) that he wanted to get one country made katta 315 bore and live cartridges from his shop and recovery of the same was Exhibit P-45. Ram Singh (P.W.54) Investigating Officer of the case has proved the investigation from stage to stage and various memos. Khagendra Kumar Sharma (P.W.55) Additional Chief Judicial Magistrate and then Judicial Magistrate, who conducted test identification parade (Exhibit P-9 to Exhibit P-13 and Exhibit P-16). 56. Application filed by the accused-appellant Sanjay Jain under Section 391 Cr.P.C. is also liable to be rejected as all the documents which he is now seeking to produce in evidence by way of additional evidence were very much in existence at the time of trial. No steps were taken by him to timely produce them in defence. Besides, most of the documents have been filed on the aspect of motive to show that firms of the appellant Sanjay Jain were having more profit than the firm of the deceased Yuvraj and that the documents were fudged to show spurt in the business and profit of the firms of deceased after he had died and certain documents are part of the case diary. As already discussed, motive has been proved by the prosecution by oral evidence of the prosecution witnesses with certain documents being produced as corroboration thereto. Even though then this case being entirely based on circumstantial evidence, the motive is of significance, nonetheless there is otherwise sufficient evidence to prove the motive attributed to the accused appellant Sanjay Jain, which merely provides corroboration to the overwhelming evidence otherwise on record. Moreover, factual reports submitted by SHO to Superintendent of Police on 25.08.2005, 30.11.2005 and 17.02.2006 and progress of investigation recorded in the case diary on different dates cannot be at this stage allowed to be brought on record by way of additional evidence. Moreover, internal correspondence between the police officials recording tentative opinion about the progress of the investigation cannot bear any reflection on the ultimate conclusion recorded by the Investigating Officer in the report filed under Section 173 Cr.P.C. Correctness of the result of the investigation would ultimately have to be decided by the court on the touch stone of the proof beyond reasonable doubt. Various entries of the case diary and its copies and internal correspondence between the police officers cannot be allowed to be accepted in evidence even if the accused has obtained the same under Right to Information Act. In any case, as per Section 172 Cr.P.C. the only purpose for which the case diary can be summoned in the Court is to enable the Investigating Officer to refresh his memory wherein his statement is recorded during trial. 57. In view of above analysis of evidence and discussion, we do not find any infirmity in the approach taken by the learned trial court. The appeals are dismissed. Judgment and order dated 16.03.2012 passed by the trial court is confirmed. Application No. 14742/2016 filed by accused-appellant Sanjay Jain under Section 391 Cr.P.C. is also dismissed. 58.Office is directed to place a copy of this judgment on record of each connected appeal.