JUDGMENT : 1. Appellants alongwith their co-accused had faced trial in FIR No. 91 dated 18.3.2014 registered at Police Station Ramganj Mandi, District Kota Rural under Section 302/34 IPC and Section 3/25 of Arms Act, 1959 (hereinafter referred to as 'the Act of 1959'). 2. Prosecution story as per the FIR, in brief, is that on 18.3.2014 at about 7.30 AM complainant Manoj Gurjar had gone to his well. He was followed by his brother Banti @ Ramesh Gurjar and his friends Hanuman Gurjar and Gordhan Gurjar on a motorcycle. Complainant after filling water in the bottle, went behind the bushes to answer the call of nature. At about 8.00 AM while he was returning towards the well, he saw that Suraj Dhobhi and his friend came on a motorcycle towards their well and immediately after getting down from their motorcycle, the said persons who were armed with revolver like weapons, ran towards Banti. At that time Banti was filling water in a bottle from the tank. Banti ran away towards the well of his neighbour Khaju Khan, in order to save himself. Suraj Dhobhi and his companion followed him and fired at Banti Gurjar. As a result, Banti fell in the fields. Thereafter, both of them fired shots on the head of Banti. The said persons then returned to the well and sat on their motorcycle and left towards Ranganjmandi side. Complainant ran towards his brother and saw that his brother was bleeding and had become unconscious. Bal Chand Nayak, Hanuman Gurjar, Govardhan Gurjar and Bajrang Gurjar also reached the spot. Complainant informed his relatives and brothers on phone regarding the incident. Suraj Dhobhi had murdered Banti because a month back Banti had lodged a case against Suraj Dhobhi with regard to damage of his vehicle. 3. After completion of investigation and necessary formalities, challan was presented against the appellants and Raj Bahadur Singh, Navneet Sharma, Pramod Sharma, Ajay @ Bhagwan, Pawan @ Gotiya and Jeetu @ Jeetendra Singh. 4. Charges were framed against the appellants under Section 302/34 IPC and Section 3/25 of the Act of 1959, whereas, with regard to other accused, charge was framed against them under Section 302/120B IPC. 5. Accused did not plead guilty to the charges framed against them and claimed trial. 6. In order to prove its case, prosecution examined 26 witnesses during trial. 5. Accused did not plead guilty to the charges framed against them and claimed trial. 6. In order to prove its case, prosecution examined 26 witnesses during trial. Accused when examined under Section 313 Cr.P.C., prayed that they were innocent and had been falsely involved in the case. 7. Accused did not examine any witness in their defence. 8. The trial court vide judgment/order dated 16.12.2017 ordered conviction and sentence of the appellants under Section 302/34 IPC and the appellants were sentenced to undergo imprisonment for life with fine of Rs. 5,000/- each and in default of payment of fine, appellants were sentenced to undergo rigorous imprisonment for two months. So far as charge framed against the appellants under Section 3/25 of the Act of 1959 is concerned, appellants were acquitted of the said charge. Hence, the present appeal by the appellants. 9. Accused Raj Bahadur, Navneet Sharma, Pramod Sharma, Ajay @ Bhagwan, Pawan @ Gotiya and Jeetu @ Jitendra Singh, were acquitted of the charge framed against them. 10. Learned counsel for the appellants has submitted that it was a case of blind murder. Alleged eye-witnesses had been falsely introduced by the prosecution. No reliance could be placed on the testimony of the alleged eye-witnesses Manoj Gurjar (PW. 4), Hanuman Gurjar (PW. 8), Govardhan (PW. 11), Bajrang (PW. 13) and Bal Chand (PW. 14). So far as appellant Vijay Singh is concerned, he was not named in the FIR, although, complainant knew the said witness for last more than one decade. Recovery of weapons at the instance of appellants during investigation was rightly disbelieved by the trial court as the weapons had been recovered from Shamsher Singh. Shamsher Singh was not examined during trial. The weapons recovered from the appellants were not sent to Forensic Science Laboratory for comparison with the cartridges recovered from the dead body. Some live as well as used cartridges were recovered from the spot, but the same were also not sent to the Forensic Science Laboratory for comparison with weapons recovered from the appellants. As per PW. 10 Dr. Rakesh Gupta, injuries on the person of deceased were result of one firearm. 11. Some live as well as used cartridges were recovered from the spot, but the same were also not sent to the Forensic Science Laboratory for comparison with weapons recovered from the appellants. As per PW. 10 Dr. Rakesh Gupta, injuries on the person of deceased were result of one firearm. 11. Learned State Counsel who is assisted by learned counsel for the complainant has opposed the appeal and has submitted that eye-witnesses have categorically deposed that both the appellants had come to the spot armed with weapons and had fired at the deceased Banti @ Ramesh Gurjar. The fact that name of Vijay Singh was not mentioned in the FIR was not fatal to the prosecution story as the witnesses, during trial, had duly deposed with regard to his involvement in the crime. 12. Present case relates to murder of Banti @ Ramesh Gurjar, brother of complainant Manoj Gurjar. The case rests on the eyewitnesses account. 13. Complainant while appearing in the Witness Box as PW. 4 has deposed as per the contents of the FIR. Complainant has deposed that both the appellants had come to the spot armed with weapons and had fired at Ramesh Chand @ Banti Gurjar. 14. PW. 8 Hanuman Gurjar, PW. 11 Govardhan, PW. 13 Bajrang and PW. 14 Bal Chand have corroborated the statement of the complainant with regard to involvement of appellants in the crime. 15. PW. 1 Bachhan Lal Yadav deposed that on 18.3.2014 he had conducted post-mortem examination on the dead body of the deceased alongwith Dr. Hemraj Meena and Dr. Rakesh Gupta and proved the post-mortem examination report Ex. P.1. As per Exhibit-P.1, deceased Banti Gurjar @ Ramesh Chand had suffered following injuries:- "1. 0.9 cm x 0.9 cm deep to brain, hole in circular, clear cut on right side of occipital bone, A.M.. 2. 0.9 cm x 0.9 cm deep to brain circular, clear cut on upper 1/3rd and left parietal bone of scalp. 3. 0.9 cm x 0.9 cm deep to brain, circular clear cut hole at right tempo parietal near pinna. 4. 3 cm x 3 cm deep to brain irregular circular hole at junction of fronto temporal jaw and upper right side. Dura mater and blood coming out through hole A.M.. piece of skull also found. 5. 2.5 cm x 2.5 cm x deep to brain irregular deep to brain matter also found. 4. 3 cm x 3 cm deep to brain irregular circular hole at junction of fronto temporal jaw and upper right side. Dura mater and blood coming out through hole A.M.. piece of skull also found. 5. 2.5 cm x 2.5 cm x deep to brain irregular deep to brain matter also found. 3 pieces of cartridges (piece of bullet found under scalp) P.M. at left fronto temporal side under scalp preserve for FSL." 16. Cause of death of deceased, as per opinion of Board of Doctors, was due to coma and brain damage and hemorrhage as a result of gun shot injury. 17. PW. 7 Dr. Hemraj Meena and PW.10 Dr. Rakesh Gupta have corroborated the statement of Dr. Bachhan Lal Yadav (PW. 1). 18. PW. 2 Omprakash deposed that on 18.3.2014 he had reached the spot on getting information from the complainant with regard to murder of Banti @ Ramesh Gurjar. 19. PW. 3 Bahadur Singh deposed that on 18.3.2014 on receiving telephone call from Manoj Gurjar with regard to murder of Banti, he had reached the spot. 20. PW. 19 Laxminarain deposed that about three years ago at about 7.00 AM he had seen Suraj and Vijay Singh travelling on a motorcycle towards the well of Banti Gurjar and after sometime he heard the sound of an explosion. He returned home and later came to know that Banti had been murdered. 21. PW. 22 Vishnu deposed that about three years back, in the evening at 8.00 PM, near Panchayat Bhawan appellants were conspiring about committing the murder of Banti. In the morning he came to know that Banti had been murdered. 22. PW. 23 Ravindra Singh deposed that on 18.3.2014 he was posted as Station House Officer, Ramganj Mandi. He received an information on phone that Banti Gurjar had died on account of firearm injuries. He reached the spot and found that the dead body of Banti Gurjar was lying its face towards the ground. He recorded the FIR on the basis of written report (Ex. P.14) lodged by Manoj Gurjar. The place of incident was got photographed. Inquest report of dead body was got prepared. One live cartridge 315 bore, one live cartridge 12 bore and two empty cartridges 12 bore were recovered from the spot and were taken in possession. He recorded the FIR on the basis of written report (Ex. P.14) lodged by Manoj Gurjar. The place of incident was got photographed. Inquest report of dead body was got prepared. One live cartridge 315 bore, one live cartridge 12 bore and two empty cartridges 12 bore were recovered from the spot and were taken in possession. Dead body was sent for post-mortem examination and after examination it was handed over to Manoj Gurjar. Site plan of place of incident was prepared. Blood stained earth as well as plain earth were lifted from the spot and were taken in possession. Statements of the witnesses were recorded. Accused Vijay Singh was arrested vide memo Exhibit-P.25. Accused Suraj was arrested vide memo Exhibit-P.26. On the basis of disclosure statements suffered by the accused Suraj and Vijay Singh, motorcycle used at the time of crime was recovered and was taken in possession. Accused Suraj suffered a disclosure statement that he had handed over the pistol with three live cartridges and one magazine used at the time of crime to Shamsher Singh Rajpoot and offered to get the same recovered. Similarly, accused Vijay Singh also suffered a disclosure statement that he had handed over one country-made pistol 315 bore with two live cartridges and one country-made 12 bore gun alongwith one live cartridge to Shamsher Singh and offered to get the same recovered. On the basis of said disclosure statements, recovery of weapons was effected from Shamsher Singh. 23. The question that requires consideration is as to whether the prosecution has been successful in establishing involvement of appellants in the crime. 24. Complainant, PW. 4 Manoj Gurjar, is the eye-witness of the case and lodger of FIR, Exhibit-P.15. Thus, the first version with regard to occurrence was disclosed by PW. 4 Manoj Gurjar. Occurrence had taken place at about 8.00 AM and report, Exhibit-P.14, was lodged at 8.30 AM. In the report lodged by PW. 4 Manoj Gurjar, which form the basis of FIR, only name of appellant Suraj has been disclosed, but name of Vijay Singh has not been disclosed. PW. 4 in his cross-examination has admitted that he knew appellant Vijay Singh for about 8-10 years prior to the incident as he was working with him in a gas agency. 4 Manoj Gurjar, which form the basis of FIR, only name of appellant Suraj has been disclosed, but name of Vijay Singh has not been disclosed. PW. 4 in his cross-examination has admitted that he knew appellant Vijay Singh for about 8-10 years prior to the incident as he was working with him in a gas agency. He admitted that in Exhibit-P.14 name of Vijay Singh was not disclosed by him and in the said report it was disclosed that Suraj Dhobi and his friend had come on motorcycle to the spot. He also admitted that age and description of the person who had accompanied Suraj Dhobi, was not disclosed in Exhibit-P.14. 25. Thus, so far as involvement of appellant Vijay Singh in the crime is concerned, the same is rendered doubtful. It is not a case where appellant Vijay Singh was not known to the complainant and could not have been identified by him. Rather, in the present case, complainant knew appellant Vijay Singh for last 8-10 years prior to the incident as they had worked together in a gas agency. In case Vijay Singh had participated in the crime, complainant, under normal circumstances, would have disclosed his name in Exhibit-P.14 as appellant Vijay Singh was known to him. The fact that complainant had failed to disclose the name of Vijay Singh while lodging the report Exhibit-P.14, leads to the inference that his name might have been introduced at a later stage to falsely involve him in this case. Although, other eye-witnesses have disclosed the name of Vijay Singh in their statements, but the fact that name of appellant Vijay Singh was not disclosed by the complainant at the time of lodging the FIR, in the facts and circumstances of the present case, renders his involvement in the crime doubtful. Moreover, PW. 10 Dr. Rakesh Gupta has deposed that as per post-mortem examination, injuries suffered by the deceased were a result of one weapon. The said fact also supports the argument raised by learned counsel for the appellants that so far as appellant Vijay Singh is concerned, he has been falsely involved in this case. 26. So far as appellant Suraj is concerned, his involvement in the crime stands duly established from the statements of the eyewitnesses. All the eye-witnesses have categorically named Suraj as the person who had fired at the deceased. 26. So far as appellant Suraj is concerned, his involvement in the crime stands duly established from the statements of the eyewitnesses. All the eye-witnesses have categorically named Suraj as the person who had fired at the deceased. Name of appellant Suraj was disclosed by the complainant while lodging the report Exhibit-P.14. In the present case, the report was lodged with the police immediately after the incident, i.e., within half an hour. Thus, the possibility that appellant Suraj might have been falsely involved in the present case, is ruled out. Moreover, PW. 4 Manoj Gurjar in his cross-examination deposed that Banti Gurjar had damaged the vehicle belonging to appellant Suraj and a case was going on between them in this regard. The incident of damage to the vehicle of Suraj had occurred about 1/1½ months prior to the incident. Hence, it can be said that appellant Suraj had a motive to commit the crime in question. From the ocular version it is evident that appellant Suraj had come to the spot armed with a firearm and had fired at Banti and as a result he had suffered firearm injuries. As per post-mortem report deceased had died on account of gun shot wounds. Deceased had died at the spot. Deceased had suffered firearm injuries on his head. Thus, medical evidence corroborates the ocular version in this regard. 27. So far as recovery of weapons at the instance of appellants is concerned, the same was disbelieved by the trial court as no effort had been made by the prosecution to get the weapons inspected from the armourer. The cartridge recovered from the dead body or the cartridges recovered from the spot had not been got compared from an expert to establish that they had been fired from the weapons recovered at the instance of the appellants. Moreover, the weapons were recovered from Shamsher Singh who was not arrayed as an accused. 28. However, the fact that appellants were acquitted qua charge framed against them under Section 3/25 of the Act of 1959 would not be a ground to order acquittal of appellant Suraj as ocular version as well as medical evidence duly establish the fact that appellant Suraj had committed the murder of Banti @ Ramesh Gurjar. 29. 28. However, the fact that appellants were acquitted qua charge framed against them under Section 3/25 of the Act of 1959 would not be a ground to order acquittal of appellant Suraj as ocular version as well as medical evidence duly establish the fact that appellant Suraj had committed the murder of Banti @ Ramesh Gurjar. 29. Thus, so far as appellant Suraj is concerned, the prosecution had been successful in proving its case against him beyond the shadow of reasonable doubt. Hence, conviction and sentence of appellant Suraj S/o. Balchand Dhobi, as ordered by the trial court, are liable to be upheld. 30. Accordingly, the appeal is partly allowed. Conviction and sentence of appellant Suraj S/o. Balchand Dhobi, as ordered by the trial court vide impugned judgment/order dated 16.12.2017 are upheld and appeal qua him is dismissed. So far as appellant Vijay Singh S/o. Latur Singh is concerned, appeal qua him is allowed and his conviction and sentence, as ordered by the trial court vide impugned judgment/order dated 16.12.2017 are set aside and he is acquitted of the charge framed against him under Section 302/34 IPC. Appellant Vijay Singh who is in custody be set at liberty forthwith, if not required in any other case. 31. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Vijay Singh S/o. Shri Latur Singh is directed to forthwith furnish a personal bond in the sum of Rs. 25,000/-, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.