JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal has been filed by accused-appellants Veeru alias Virendra Singh Hada, Kunal Jethi and Imran Batli, challenging judgment dated 28.05.2012 passed by Additional Sessions Judge No. 3, Kota (for short ‘the trial court’) whereby the trail court convicted and sentenced the accused-appellants in the manner indicated below: NAME OF ACCUSED CONVICTION AND SENTENCE Veeru alias Virendra Singh Hada Under Section 302, 302/34 IPC and sentenced to imprisonment for life and fine of Rs. 10,000/- in default whereof to further undergo six months rigorous imprisonment. Under Section 3/25 Arms Act and sentenced to three years simple imprisonment and fine of Rs. 1,000/- in default whereof to further undergo one month’s simple imprisonment. Kunal Jethi Under Section 302/34 IPC and sentenced to imprisonment for life and fine of Rs. 10,000/- in default whereof to further undergo six months rigorous imprisonment. Imran Batli Under Section 302/34 IPC and sentenced to imprisonment for life and fine of Rs. 10,000/- in default whereof to further undergo six months rigorous imprisonment. 2. Facts of the case are that on 18.06.2009, one Saurabh Maheshwari(P.W.1) submitted a written report(Exhibit P-1) to S.H.O., Police Station Jawahar Nagar, Kota City stating therein that on that day in the night at about 9.30 P.M., he, Abhishek Singh Rajawat and Satyendra Singh Tomar were talking each other, while sitting near Ambition Gym in Dadabadi, Jawahar Nagar. Hemant, Bantu and Sonu were sitting on roof of Gym. At that time, three persons came on a motorcycle, one of whom was Kunal Jethi and another one was Virendra Rajput @ Veeru. Third person had long hairs. On arrival, Kunal and the boy standing behind exhorted Virendra to kill them (Informant and his companions). Virendra took out his pistol from right side pocket of his pants and fired at the neck of Satyendra from close range, as a result of which, he fell down. The informant raised hue and cry, upon which all the assailants ran away. Vijendra Singh Tomar, elder brother of Satyendra also arrived there, who saw the assailants running from the place of incident. It was alleged that the accused had heated exchange of words with Hemant before the incident. Thereafter, Satyendra was taken to Sudha Hospital in a car. 3. The informant raised hue and cry, upon which all the assailants ran away. Vijendra Singh Tomar, elder brother of Satyendra also arrived there, who saw the assailants running from the place of incident. It was alleged that the accused had heated exchange of words with Hemant before the incident. Thereafter, Satyendra was taken to Sudha Hospital in a car. 3. On the basis of aforesaid written report (Exhibit P-1), regular FIR No. 155/2009 was chalked out at Police Station Jawahar Nagar, Kota for offence under Sections 307, 34 IPC. Satyendra died on 22.06.2009, therefore, offence under Section 302/34 IPC was added to already registered FIR. Upon completion of investigation, charge sheet under Section 302/34 IPC and Section 3/25 Arms Act was filed against the accused appellants before the trial court. Charges under Sections 302/34 and 302 IPC were framed against the accused-appellants. Separate charge under Section 3/25 Arms was framed against accused-appellant Veeru alias Virendra Singh Hada. The accused appellants denied the charges and claimed trial. The prosecution produced 24 witnesses and exhibited 59 documents. Thereafter, the accused-appellants were examined under Section 313 Cr.P.C., wherein they pleaded not guilty. Although, the accused-appellant did not produce any witness, but exhibited two documents. The trial court, on conclusion of trial, vide judgment dated 28.05.2012 convicted and sentenced the accused-appellants in the manner as indicated above. Hence, this appeal by the accused-appellants. 4. Mr. Ashvin Garg, learned counsel for the accused appellants has argued that it was a blind murder case and when the police failed to nab the real culprits, it has falsely implicated the accused-appellants by fabricating the evidence. The trial court has recorded a finding that enmity between the accused and the deceased was not proved, which would mean that there was no motive with the accused to commit the murder of the deceased. Yet the trial court illegally convicted two of the accused namely Kunal Jethi and Imran Batli with the aid of section 34 IPC. Solitary witness, on whose statement, reliance has been placed by the learned trail court is Saurabh Maheshwari(P.W.1), informant. Even this witness has not spoken about the genesis of the incident and has stated that Abhishek and Satyendra were his close friends and he could not say whether Satyendra had any previous enmity with the accused. In fact, he did not have any enmity with the accused. Even this witness has not spoken about the genesis of the incident and has stated that Abhishek and Satyendra were his close friends and he could not say whether Satyendra had any previous enmity with the accused. In fact, he did not have any enmity with the accused. No altercation took place between Kunal Jethi and Satyendra. Even the informant did not see any quarrel with Kunal Jethi. He did not remember any incident/fact which could rather suggest that Kunal Jethi was having any intention to commit murder of Stayendra. Sanjay Sharma(P.W.23), investigating officer has also clearly stated that his investigation did not prove any previous enmity between the accused and the deceased. Learned counsel submitted that serious offence of murder could not held to have been proved against the accused without there being any motive. It is argued that in the written report (Exhibit P-1) as well as court’s statements of Saurabh Maheshwari (P.W.1) and Abhishek (P.W.3), it has been stated that accused Viirendra took out pistol and opened fire at Satyendra. Saurabh Maheshwari (P.W.1) stated that accused Virendra opened fire by pointing the gun at the neck of the deceased below his ear. Abhishek (P.W.3) stated that Virendra took out pistol from right side pocket of his pants and opened fire at Satyendra whereas the fact is that police has not recovered pistol from Virendra and it has recovered a country-made katta at his instance. Sanjay Sharma (P.W.23) investigating officer has admitted in cross-examination that while in the FIR, weapon of offence was allegedly described to be pistol whereas recovery of country-made katta has been made, which is different kind of weapon. 5. Learned counsel for the appellants submitted that Saurabh Maheshwari(P.W.1) stated that fire was opened from a place close to him. He has specifically named particular kind of firearm. According to his statement, fire was opened from a close range and therefore, he had full opportunity to see the weapon of offence. Even then, this witness has not stated that weapon of offence was a country-made katta. Learned counsel argued that prosecution evidence with regard to weapon of offence is unworthy of credence. Prosecution witnesses stated that fire was opened by pistol, but country-made katta was recovered. Even then, country-made katta was not shown to the witnesses at the time of their examination before the trial court. Learned counsel argued that prosecution evidence with regard to weapon of offence is unworthy of credence. Prosecution witnesses stated that fire was opened by pistol, but country-made katta was recovered. Even then, country-made katta was not shown to the witnesses at the time of their examination before the trial court. None of them has stated that it was a country-made katta, which was used in the incident. The country-made katta was also shown to the doctors namely Dr. Mamraj Agarwal (P.W.4), Dr. Mukesh Kumar Bansal (P.W.7), Dr. Ravi Prakash Nagar (P.W.10) and Dr. Rakesh Sharma (P.W.15). It is argued that learned trial court failed to consider that there is total lack of evidence as to recent use of country-made katta during the incident by accused Virendra. Sanjay Sharma(P.W.23) investigating officer in his cross-examination admitted that he did not take any opinion from the police armorer with regard to recent use of country-made pistol. It is argued that place wherefrom clothes and katta were recovered was not in exclusive possession of Virendra and Kunal Jethi. Rishipal Singh (P.W.17) stated that when recovery of jeans of Virendra was made vide Exhibit P-42, lock of the house was already open and inmates were present in the house. Thus, recovery was made by SHO from an open place. Number of persons used to visit that house and anybody could have access to the Chowk from where the recovery was made. Ravindra Kumar (P.W.20) has accepted this aspect of the matter. Both the witnesses, despite being police personnel, have stated the truth. 6. Learned counsel argued that learned trial court has missed out an important aspect of the matter that clothes of none of the accused were found blood smeared, even then recovery of blood stained clothes has been made at the instance of Virendra. His arrest, according to the police, was made on 20.06.2009 and information about the place where the country-made katta was concealed under Section 27 of the Evidence Act was gathered from him vide memo Exhibit P-51 on 22.06.2009. Even then, it is surprising that recovery of clothes and katta were made at the instance of the accused Virendra with delay of six days on 26.06.2009. Such recoveries are result of police padding and not genuine. Even then, it is surprising that recovery of clothes and katta were made at the instance of the accused Virendra with delay of six days on 26.06.2009. Such recoveries are result of police padding and not genuine. Learned counsel in this connection referred to provisions of Section 100(4) Cr.P.C. and submitted that independent witnesses were required to be associated with the said recoveries. No independent witnesses were called despite the area being abadi area. The search and seizures made in the presence of police officials are false and fabricated. Conviction of the accused appellants on the basis of such recoveries ought not to be sustained, particularly when the Investigating Officer, Sanjay Sharma (P.W.23) did not make any effort to associate independent witnesses with such search and seizures. Reference in this connection has been made to statement of Ravindra Kumar (P.W.20), who admitted that the place from where the recoveries were made was a basti where independent witnesses could easily be available. He also admitted that Investigating Officer did not make any effort to summon any independent witness. Reliance in this connection has been place on the judgment of Himachal Pradesh High Court in State of H.P. Vs. Sudarshan Kumar @ Kala, 1989 (3), Crimes 608 (HP-DB) and judgment of Delhi High Court in Islamuddin Vs. State, 1975 Cr.L.J. 841(Del.). 7. Learned counsel argued that no overt act has been assigned to Kunal Jethi and Imran Batli. All that has been alleged against Kunal Jethi is that when the accused Kunal with one another person with long hairs reached at the place of incident, they exhorted accused Virendra indicating the deceased and his companions that kill them (“Maro salon ko”). In the common parlance, this kind of exhortation would only mean giving threshing and beating to the victims and not to murder them. Therefore, charges against the accused-appellants cannot be held to have been proved so as to bring the accused within the purview of Section 34 IPC to say that they shared common intention with accused Virendra to commit murder of Satyendra. 8. Learned counsel submitted that when the prosecution has failed to prove the motive, the case cannot be brought within the purview of Section 34 IPC. As regards accused Imran Batli, learned counsel argued that he was not named in the FIR as also in the police statement by the informant, Saurabh Maheshwari (P.W.1). 8. Learned counsel submitted that when the prosecution has failed to prove the motive, the case cannot be brought within the purview of Section 34 IPC. As regards accused Imran Batli, learned counsel argued that he was not named in the FIR as also in the police statement by the informant, Saurabh Maheshwari (P.W.1). The informant, for the first time, in his court statement has named Imran as third accused. It is only when the police statement of Vijendra Singh Tomar(P.W.2), brother of the deceased was recorded on 19.06.2009 that name of Imran was mentioned. Vijendra Singh(P.W.2) cannot be accepted as eye witness even from the version of the written report (Exhibit P-1) submitted by Saurabh Maheshwari(P.W.1). Therein, he stated that after the accused Virendra had fired at Satyendra, as a result of which, he fell on the ground, he made hue and cry. It was thereafter that Satyendra’s elder brother Vijendra Singh(P.W.2) reached there, who also saw the accused fleeing from the place of incident. Learned counsel submitted that if the statement of Vijendra Singh is read in conjunction with statement of Saurabh Maheshwari(P.W.1), it becomes absolutely clear that he was not an eye witness, but was only planted eye witness. Learned counsel referred to cross-examination of Saurabh Maheshwari(P.W.1), who admitted that he did not mention name of Imran Batli in written report (Exhibit P-1), but he admitted that Imran Batli was known to him for 5-6 months prior to the date of incident and further that Imran Batli was having his house in Chavni and this witness was also having his house in Chavni. If that was so, there was no reason that if Imran Batli, who was one of the three assailants, should not have been named in the written report. He knew them by face, but he did not talk to anyone of them. He came to learn about their names through Bantu. It is a fact that when the police came to the hospital, he had already spoken to Vijendra Singh Tomar(P.W.2) and Abhishek(P.W.3) about the incident. He also admitted that police had already started investigation even before the FIR was lodged. When they came to Sudha Hospital from Ambition Gym, the place of incident, Jawahar Nagar Police Station was located on the way. 9. He also admitted that police had already started investigation even before the FIR was lodged. When they came to Sudha Hospital from Ambition Gym, the place of incident, Jawahar Nagar Police Station was located on the way. 9. Learned counsel also referred to relevant part of cross-examination of Saurabh Maheshwari (P.W.1) wherein he stated that there was no altercation or dispute between Satyendra and Kunal Jethi on the day of incident. Relations between them, therefore, could not be said to be such that one would go to the extent of committing murder of another. Learned counsel submitted that Saurabh Maheshwari(P.W.1) in his statement stated that it was correct that he gave first information report after he had talked Hemant and others, which shows that he was not an eye witness and he has falsely projected himself as eye witness. Learned counsel also extensively referred to statement of Vijendra Singh Tomar (P.W.2), elder brother of the deceased and submitted that from what this witness has stated, he cannot be accepted as an eye witness. This witness has stated that when deceased Satyendra did not return back to home till 9.30 P.M. on 18.06.2009, he went to Ambition Gym, Dadabadi. When he reached there, he heard sound of fire and saw Virendra Singh, Kunal Jethi and one another person running from there. Virendra Singh was having gun in his hand. Kunal Jethi was also accompanying them. All three of them fled away on a motorcycle, which was being driven by Imran Batli. He saw his brother lying in a pool of blood at the entrance of Ambition Gym. Hemant and Bantu informed him that accused, Kunal Jethi, Virendra and Imran Batli, who had altercation with them and thereafter Virendra and Kunal Jethi fired at Satyendra. Bantu informed him that Kunal Jethi was resident of Nagar Nigam Colony and Virendra Rajput was resident of Surajpole Gate. This shows that these persons were not known to him and he was stating on the basis of narration given by certain other persons. Learned counsel also referred to his statement where he admitted that in site plan(Exhibit P-2), there in no reference to any light (electric light) and therefore, it has not been explained by the prosecution how could these witnesses identified the accused. Learned counsel also referred to his statement where he admitted that in site plan(Exhibit P-2), there in no reference to any light (electric light) and therefore, it has not been explained by the prosecution how could these witnesses identified the accused. Reference is also made to statements of Sanjay Sharma(P.W.23) investigating officer, who has also similarly stated that there is no reference to either any electric pole or any light in the site plan(Exhibit P-2). Learned counsel submitted that Rajesh(P.W.5), Sunil Kumar Soni(P.W.6) and Hemant Sharma(P.W.8), who were disclosed to be eye witnesses have not supported case of the prosecution and were declared hostile. Learned counsel submitted that recovery of pistol at the instance of accused-appellant Virendra has been shown vide Exhibit P-43 after his arrest on 26.06.2009 whereas two cartridges have been shown to be recovered at the instance of Kunal Jethi on the same day vide Exhibit P-44 only with a view to creating evidence against him. 10. Learned counsel argued that learned trial court has committed serious illegality by reading FSL report whereas this report was neither exhibited, nor was put to accused in their examination under Section 313 Cr.P.C. Learned counsel in this connection has also placed reliance on the report of police armorer (Exhibit P-41), which has been proved by Mohd. Arif(P.W.16) to the effect that seized article was a country-made katta and it was found to be in serviceable condition and fell in the category of firearm. In cross-examination, Mohd. Arif(P.w.16) stated that he did not test the katta to the effect that whether it was recently used for firing. Learned counsel therefore submitted that so far as recovery of motor cycle of Virendra is concerned, it was allegedly recovered from the place of incident on 20.06.2009 and therefore, this recovery also cannot be read against him. Referring to the statement of Sanjay Sharma (P.W.23) investigating officer, he submitted that investigation conducted by him is full of lacuna and loopholes. 11. Learned counsel alternatively argued that in totality of evidence at the maximum offence of culpable homicide not amounting to murder can be taken to have been proved against Virendra. Referring to the statement of Sanjay Sharma (P.W.23) investigating officer, he submitted that investigation conducted by him is full of lacuna and loopholes. 11. Learned counsel alternatively argued that in totality of evidence at the maximum offence of culpable homicide not amounting to murder can be taken to have been proved against Virendra. There is no cogent and reliable evidence against him and he can at the maximum convicted for offence under Section 304 Part II IPC, particularly when the deceased died after four days of the incident, which shows that had timely and proper treatment been provided to him, he could have survived. Accused-appellant Virendra has already served sentence of 7 years, 8 months and 16 days and therefore, his conviction be altered from Section 302 IPC to one under Section 304 Part II IPC and he should be sentenced to period of sentence already undergone by him. 12. Mr. R.S. Raghav, learned Public Prosecutor supported the impugned judgment and extensively read the relevant parts of the judgment as also statements of the witnesses and argued that accused-appellants have rightly been convicted for the alleged offences and sentenced thereafter. The appeal be, therefore, dismissed. 13. We have given our anxious consideration to rival submissions and carefully perused the record of the case. 14. Star witness of the prosecution in the present case is Saurabh Maheshwari(P.W.1), who at the time of incident was accompanying the deceased along with Abhishek and it was this witness, who had submitted the written report(Exhibit P-1). He has candidly stated that he, Abhishek and the deceased Satyendra were sitting near Ambition Gym in Dadabadi. At that time, Hemant, Bantu and Sonu were sitting on the roof of the Gym. Suddenly Kunal Jethi, Virendra Singh Rajput @ Veeru and one more person with long hair came there on a motorcycle. Kunal and third person exhorted Virendra to kill the informant and his two companions. Virendra thereupon took out the pistol from right side pocket of his pants and opened fire from close range on the neck of the deceased immediately below his ears. Satyendra instantaneously fell on the ground. On this, the informant made hue and cry. When these three persons started running from there, elder brother of the deceased, Vijendra Singh Tomar (P.W.2) also reached there and saw all three persons fleeing from the place of incident. Satyendra instantaneously fell on the ground. On this, the informant made hue and cry. When these three persons started running from there, elder brother of the deceased, Vijendra Singh Tomar (P.W.2) also reached there and saw all three persons fleeing from the place of incident. This witness also stated that altercation had taken place between these three persons and Hemant. He then stated that Satyendra Singh was immediately moved to Sudha Hospital in a car. In court statement, this witness stated that he on his own gave the written report at Police Station Jawahar Nagar, Kota City because at that time, brother of the deceased Vijendra Singh Tomar(P.W.2) was busy in arranging blood for his brother in the hospital. All that it was said that this witness was the first one, who lifted body of the deceased from the place of incident and took him to the hospital. 15. Distance between place of incident and hospital was approximately 2 Km and they had taken the deceased to the hospital in the car of his brother Vijendra Singh Tomar(P.W.2). He followed the car on his motorcycle. Vijendra Singh was driving the car and Satyendra was lying on the back seat of the car. They told the hospital staff that Satyendra had received fire arm injury on his neck and hospital staff informed the police. When the police reached the hospital, they talked to Vijendra Singh Tomar. The police did not insist Vijendra Singh Tomar to accompany them for lodging FIR because he(this witness) told the police that he remembered the entire incident more accurately and therefore, the police took him to the police station. When this witness was confronted with his police statement (Exhibit D-1), he admitted that reference to third person with long hair therein was made, but name of Imran Batli did not mention therein. This witness elsewhere in the cross-examination had admitted that Imran Batli was known to him for last 5-6 months because both of them had their houses in Chavni. Although, on this kind of statement made by him, doubt may arise to the involvement of Imran Batli, but it would be too much to stretch inconsistency in the statement of Saurabh Maheshwari(P.W.1) to even exclude roles of other two accused with regard to whom his statement throughout was consistent. Although, on this kind of statement made by him, doubt may arise to the involvement of Imran Batli, but it would be too much to stretch inconsistency in the statement of Saurabh Maheshwari(P.W.1) to even exclude roles of other two accused with regard to whom his statement throughout was consistent. We are also inclined to uphold the contention that this witness in cross-examination at page 7 of the statement stated that he lodged the FIR after he had talked to Hemant and others. This argument should not be stretched to the extent of holding that he was not even an eye witness and he lodged the FIR on the basis of version given to him by Hemant and others. This part of his statement has to be read along with earlier part of the statement where he stated that he had talked with Vijendra Singh and Abhishek before the police arrived there, but then he explained that apart that, Bantu, Abhishek, Hemant and Sonu were also there in police station. Though Bantu, Rajesh and Hemant were not with him in Sudha Hospital, but he again said that they were all in hospital but he did not have any conversation with them and they did not tell him anything about the incident there. Such kind of slight deviation in his statement in a murder case cannot make him completely unreliable. 16. Even if, therefore, we do not accept Vijendra Singh Tomar(P.W.2) as an eye witness, testimony of Saurabh Maheshwari(P.W.1), who stood scrutiny of detailed and lengthy cross-examination, in our view, should suffice conviction of accused-appellants Virendra @ Viru and Kunal Jethi. We say so because in our view, Vijendra Singh was not with the deceased and his two companions Saurabh Maheshwari and Abhishek outside Ambition Gym and came there after the incident had taken place. We find ourselves unable to believe him as eye witness even to the extent of his witnessing three accused fleeing from the place of incident. Vijendra Singh Tomar(P.W.2), in examination in chief, stated that when he reached at the place of incident and took his brother Satyendra to Sudha Hospital, it was informed by Hemant and Bantu that accused Kunal Jethi, Virendra and Imran Batli sometime back had altercation with the deceased and his companions and due to that Virendra and Kunal Jethi opened fire on Satyendra. This witness, in his police statement (Exhibit D-2), which was recorded on the next day of the incident i.e. on 19.06.2009, for the first time named Imran Batli as the third person with long hairs. Although, Saurabh Maheshwari (P.W.1) did not name him either in the written report/FIR or in his police statement(Exhibit D-1) recorded on the same day, but he had admitted in his court statement that Imran and he(this witness) were having their houses in same locality, Chavni and Imran Batli was known to him for 5-6 months prior to the incident. 17. Rajesh (P.W.5), Sunil Kumar Soni(P.W.6) and Hemant Sharma(P.W.8) though were produced by the prosecution as eye witnesses, but they have chosen not to support prosecution case. Even then these witnesses have partly proved the manner in which the incident had taken place. Rajesh (P.W.5) stated that while they (these witnesses) were sitting on the roof of the Gym, deceased and his two companions Abhishek and Saurabh Maheshwari were sitting on the ground floor. Abhishek suddenly came upstairs and informed that somebody has fired at Sanju. Sunil Kumar Soni(P.W.6) made somewhat similar statement, but also additionally stated that while the deceased and his two companions were sitting on the ground floor, three persons came there on a motorcycle and he heard the sound of fire. One of the companions of the deceased came upstairs and told him that somebody had fired at Sanju and he was profusely bleeding. Three persons, who came on motorcycle, fled away from there. Hemant Sharma(P.W.8) has also made similar statement that when he along with Bantu @ Rajesh was sitting on the roof of the Gym, they suddenly heard sound of fire. These three witnesses although have not supported case of the prosecution as to who fired at the deceased, but despite their being declared hostile, they can certainly be read to the extent that three accused came to the place of incident on motorcycle and one of them opened fire at deceased Satyendra. To that extent their version is in sync with what has been stated by Saurabh Maheshwari (P.W.1) and provides corroboration to his testimony. 18. To that extent their version is in sync with what has been stated by Saurabh Maheshwari (P.W.1) and provides corroboration to his testimony. 18. In the face of this kind of evidence, minor lacuna on the part of the investigating agency in not pin pointedly indicating electric pole or electric bulb in the site plan(Exhibit P-2) would not make any dent to the prosecution case because testimony of other witnesses prove that it was a regular Gym where the customers were being charged on hourly basis and the Gym was running from morning till late in the night. This factor alone may not therefore be a reason to discard testimony of prosecution witnesses otherwise available on record. 19. Similarly, FSL Report, which has been relied by the learned trial court and read to the extent it seeks to connect two empty cartridges recovered at the instance of accused Kunal Jethi and country-made katta at the instance of Virendra cannot be made basis for holding that the accused-appellants were not at all involved in the incident. This is because recovery of cartridges has been proved by prosecution witnesses Ravindar Kumar(P.W.20) and Rishipal(P.W.17). It is common knowledge that FSL reports are inordinately delayed inasmuch as at times they are received when the prosecution evidence is almost over. Trial court may have committed any illegality in reading FSL report, but then the report of the police armorer (Exhibit P-41) when read conjointly with the statements of eye witnesses would show that such country-made katta, which has been mistakenly referred as to pistol by the informant, has been found to fall in the category of firearm and capable of firing 8 MM(315 bore) and KF 8MM was inscribed on the empty cartridge. 20. Dr. Mamraj (P.W.4), who conducted autopsy upon the deceased Satyendra has proved that C.T. Scan of the deceased was already conducted. He had also inspected his C.T. Scan, which showed that both the injuries were stitched to stop bleeding. He has written operation note(Exhibit P-8), which indicates that the deceased was profusely bleeding at the time he was taken to hospital and both the wounds were communicating with each other. Admission ticket(Exhibit P-7) of the deceased proved that there were multiple foreign bodies seen in cerebellum, neck and parito-occipital lobe. 21. Dr. Rakesh Sharma(P.W.15) has proved post mortem report(Exhibit P-40). Admission ticket(Exhibit P-7) of the deceased proved that there were multiple foreign bodies seen in cerebellum, neck and parito-occipital lobe. 21. Dr. Rakesh Sharma(P.W.15) has proved post mortem report(Exhibit P-40). According to him, deceased died as a result of ante mortem fire arm injuries. He has stated that one metallic piece was extracted from the brain of the deceased, which was sealed and sent for chemical examination to Forensic Science Laboratory. Sanjay Sharma (P.W.23) investigating officer has proved all the stages of investigation. 22. Contention that no motive on the part of the accused has been proved to justify murder of Satyendra, cannot be relied to discard testimony of eye witness, who has been found to be trustworthy. This argument could have been better appreciated in a case based entirely on circumstantial evidence. When there is eye witness, who has fully supported prosecution case, mere absence of motive cannot be a reason to upturn the finding of conviction recorded by the trial court. Moreover, in the present case, some of the prosecution witnesses stated that altercation took place between accused and the deceased before the incident. 23. In view of above discussion, while we are inclined to allow the appeal filed by the accused-appellant Imran Batli and the same is accordingly allowed. Conviction and sentence of the accused-appellant Imran Batli for offence under Section 302/34 IPC is set aside. He is on bail and his bail bonds are discharged. However, we are not persuaded to interfere with the conviction and sentence recorded against the accused-appellants Virendra @ Viru and Kunal Jethi and appeal filed by the accused-appellant Virendra @ Viru and Kunal Jethi stands dismissed. 24. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Imran Batli is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, he, on receipt of notice thereof, shall appear before the Supreme Court.