JUDGMENT : MEHTA, J. 1. The appellant herein has been convicted and sentenced as below vide judgment dated 03.09.2016 passed by the learned Sessions Judge, Churu in Sessions Case No.14/2013 (21/2009): Offences Sentences Fine Fine Default sentences Section 302 IPC Life Imprisonment Rs.2,000/- Section 3/25 of the Arms Act 1 Year’s S.I. Rs.2,000/- 1 Month’s S.I. All the substantive sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein below: 4. One Shri Vijendra Singh (PW-6) lodged a written report (Ex.P/20) to the SHO, Police Station Rajgarh, District Churu on 06.02.2009 at 08.00 pm. alleging inter alia that on the same day at about 4 O’ Clock in the evening, he, alongwith his cousin Virendra reached Sheetla Bazar, Rajgarh in a vehicle driven by Gyan Singh. At the Sheetla Chowk, Virendra Singh got down from the car and went to a barber’s shop. The informant was sitting on the rear seat. Virendra Singh had instructed them that the car be brought back on which, Gyan Singh turned the car back from the Masjid Road. Virendra Singh was seen coming back from the barber’s shop and had reached the Sheetla Chowk when, two boys came around on a red coloured Hero Honda motorcycle having registration number starting with the letters H.R. One of the boys fired a gunshot on the back of Virendra due to which, he fell down. The other boy, fired a gun shot below the ear of Virendra and then fired another gunshot on his head. On seeing the attack, the informant and Gyan Singh (PW-2) got down from the vehicle. The assailants, ran away on the road going towards Nehru Bal Mandir School where an unnumbered Bolero car was parked with 5-6 persons in it. One of these boys, boarded the car and the other ran on foot and both managed to escape from the scene of occurrence. The informant alleged that the occupants of the car were also responsible for perpetrating the attack. The assailants abandoned their motorcycle while running away. A pair of shoes was also left behind by one of the assailants. Empty cartridges were lying at the spot. The informant alleged that the occupants of the car were also responsible for perpetrating the attack. The assailants abandoned their motorcycle while running away. A pair of shoes was also left behind by one of the assailants. Empty cartridges were lying at the spot. It was further alleged by the complainant that he could identify the assailants on seeing them again. Virendra Singh was taken to the hospital. The attack had been orchestrated by the Member of Parliament Shri Ram Singh Kaswan, Mahesh Fagedia and their family members by hatching a conspiracy. They bore enmity towards Virendra Singh who had contested the Legislative Assembly Election against the wife of Ram Singh Kaswan in the year 2008 and was preparing to contest the forthcoming General Election as well. It was further alleged that previously also, attacks had been made on Virendra Singh because of this political rivalry. An FIR had been lodged for these attacks against Billu, Pappu and Bindu, the nephews of Ram Singh Kaswan, who used his influence to get the attack perpetrated. On the basis of the report aforestated, an FIR No.43/2009 (Ex.P/21) came to be lodged at the Police Station Rajgarh for the offences under Sections 302, 147, 148, 149 and 120 IPC and Section 27 of the Indian Arms Act. 5. The incident bore serious political overtones. Thus, under the directions of the Superintendent of Police, Churu, the investigation of the case was assigned to the Additional S.P., Churu Shri Kishan Sahay (PW-40). He carried out site inspection and prepared the site inspection plan (Ex.P/1) and the site inspection memo (Ex.P/1A). Blood stained soil was collected from the place of incident vide seizure memo (Ex.P/2). Control soil was seized vide seizure memo (Ex.P/3). The blood stained T-shirt and trousers of the witness Gyan Singh were seized vide seizure memo (Ex.P/4). A 9mm2ZKF94 empty cartridge lying at the place of the incident was seized vide seizure memo (Ex.P/5). A Hero Honda motorcycle bearing No.HR-10E and chassis No.02K20C14156 which was lying near the Lal Piau was seized vide seizure memo (Ex.P/6). A pair of shoes lying on the passage between Nehru Bal Mandir and Rukam Tikmani Balika School was seized vide seizure memo (Ex.P/7). The Fard Surathaal Lash (Ex.P/10) and Panchnama Lash (Ex.P/41) of Virendra Singh’s dead body were prepared. The blood stained clothes of Shri Virendra Singh were seized vide seizure memo (Ex.P/42). A pair of shoes lying on the passage between Nehru Bal Mandir and Rukam Tikmani Balika School was seized vide seizure memo (Ex.P/7). The Fard Surathaal Lash (Ex.P/10) and Panchnama Lash (Ex.P/41) of Virendra Singh’s dead body were prepared. The blood stained clothes of Shri Virendra Singh were seized vide seizure memo (Ex.P/42). The body was subjected to postmortem and postmortem report (Ex.P/46) was procured. The body was then handed over for last rites to Virendra Singh’s cousin Manoj Singh vide memorandum (Ex.P/43). The Forensic Mobile Unit was associated in investigation which took photographs of the place of incident (Ex.P/110 to 142). A bullet (Article-6) taken out by the doctor from the head of the deceased while conducting postmortem was also seized. Thereafter, the case file was handed over to the CID (CB) for further investigation which was assigned to Ramgopal (PW-41) who was posted as an ASI in the CID (CB) Cell, Bikaner. He undertook investigation regarding a suspected mobile sim and the motorcycle used in the incident. Further investigation was undertaken by Rajesh Kumar Sharma, CID (CB) Cell, Jaipur (PW-35) who arrested the accused persons in the following order : Shyam Sunder on 16.02.2009 at 07.20 pm. - (Ex.P/27) Balwan Singh on 16.02.2009 at 07.35 pm. - (Ex.P/31) Satpal @ Pali on 16.02.2009 at 07.05 pm. - (Ex.P/29) Pawan Kumar on 23.02.2009 at 07.00 pm. (Ex.P/28) Vipin Kumar on 22.03.2009 at 09.00 pm. (Ex.P/149). 6. A Nokia-1100 mobile phone was found during personal search of the accused Shyam Sunder and was seized vide seizure memo (Ex.P/30). Likewise, a Nokia 1600 mobile phone was recovered during personal search of the accused Satpal @ Pali which was seized vide seizure memo (Ex.P/61). The accused Satpal as well as Shyam Sunder gave information’s to the I.O. under Section 27 and got the place of incident verified. The accused Satpal gave an information to the I.O. under Section 27 of the Evidence Act (Ex.P/65) regarding concealment of a Deshi Katta used in the incident and acting in furtherance of the said information, he took the I.O. to his residence at village Choudhary Ka Bas, P.S. Sadar Hisar (Haryana) and got recovered a country made pistol and six cartridges which were seized vide seizure memo (Ex.P/66). The documents of the motorcycle were also recovered vide recovery memo (Ex.P./70) in furtherance of the information (Ex.P/69) provided by the accused Satpal to the I.O. under Section 27 of the Evidence Act. The accused Shyam Sunder gave an information (Ex.P/74) to the I.O. regarding the pistol used to fire the gunshots at Virendra Singh which he had hidden in his own house. The said information was taken down in memorandum (Ex.P/73) and acting in furtherance thereof, the accused took the I.O. to his residence and got recovered a pistol and four cartridges which were seized vide seizure memo (Ex.P/57). The accused Shyam Sunder also gave information to the I.O. regarding he having procured the pistol from one Ramla Jat and got his house verified. Other information’s taken from the accused Balwan Singh, Pawan Kumar, Vikram Singh and Ramla need not be discussed in view of the fact that these accused have been acquitted by the trial court. Since the accused Shyam Sunder and Satpal were suspected of being the principal offenders, they were kept baparda and test identification proceedings of these two accused were got conducted at the Jail through the Judicial Magistrate Sunil Kumar Yadav (PW-32) in whose presence, the witnesses Vijendra Singh, Ladhu Singh, Nephu Singh, Naresh Singh and Narpat Singh were summoned and were asked to identify the accused persons. All these witnesses correctly identified Shyam Sunder in the parade. It may be stated here that Satpal has expired and thus, the prosecution did not get proved the memos pertaining to his identification in the evidence of the Magistrate Shri Sunil Kumar Yadav. Sanction to prosecute the accused Shyam Sunder under Section 25 of the Arms Act was procured from the District Magistrate and finally, a charge-sheet came to be filed against accused Shyam Sunder, Satpal, Balwant Singh, Pawan Kumar, Vipin Kumar and Raman @ Ramla in the court of the Magistrate concerned for the offences under Sections 302, 302/149, 120B IPC and Section 3/25 of the Arms Act. As the offence under Section 302 IPC was exclusively Sessions triable, the case was committed to the court of the Additional Sessions Judge, Rajgarh and the same got transferred for trial in due course to the Court of Sessions Judge, Churu. Charges were framed against all the accused in the above terms. They pleaded not guilty and claimed trial. The prosecution examined 12 witnesses. Charges were framed against all the accused in the above terms. They pleaded not guilty and claimed trial. The prosecution examined 12 witnesses. Thereafter, a supplementary charge-sheet came to be filed against the subsequently arrested accused Raman @ Ramla for the offence under Section 302 read with Section 120B IPC. His case was also committed and consolidated with the case of the previously charge-sheeted accused. The trial court framed charges against Ramla for the offence under Section 302 read with Section 120B IPC. He pleaded not guilty and claimed trial. The counsel representing the accused Ramla did not seek cross-examination of the 12 witnesses examined earlier and thus, they were not summoned afresh. The prosecution examined a total of 43 witnesses and exhibited 164 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, the accused Shyam Sunder and Satpal claimed that the Additional S.P. had shown them to the witnesses Gyan Singh, Nephu Singh, Naresh Singh and Vijendra at the Police Station Rajaldesar and Police Station Rajgarh and also in the office of Circle Officer, Churu before the test identification proceedings were held. The murder of Virendra was a political affair. The entire Rajput fraternity of the State of Rajasthan indulged in arson and violence after the incident. The names of the Member of Parliament Ram Singh Kaswan and Smt. Kamla Kaswan, the Member of Legislative Assembly, were mentioned in the FIR. The Rajgarh Police Station was put under a siege. The District Collector and the Superintendent of Police, Churu who were present there, were pressurized to arrest the offenders. They apprehended mass scale violence and thus, four hours after the incident, family members were concocted to be the eye-witnesses and the accused appellants were implicated in the case just to appease the agitating Rajput community. The accused Raman @ Ramla denied to have provided any pistol to Shyam Sunder and Pawan Kumar. The accused Balwan claimed that Virendra had a number of enemies who might have killed him. The actual accused could not be traced out and thus, the police fabricated evidence to implicate him in the case. The name of Mahesh Fagediya was mentioned in the FIR but he was not charge-sheeted. The accused Balwan claimed that Virendra had a number of enemies who might have killed him. The actual accused could not be traced out and thus, the police fabricated evidence to implicate him in the case. The name of Mahesh Fagediya was mentioned in the FIR but he was not charge-sheeted. Fabricated documents were prepared so as to substantiate the trumped up charges that the principal accused hatched a conspiracy and engaged contract killers to murder Shri Virendra. Five witnesses were examined in defence. 7. After hearing the arguments advanced by the prosecution and the defence counsel and, appreciating the entire evidence available on record, the learned trial court, proceeded to acquit the accused Balwan, Pawan Kumar and Virendra Kumar and Ramla of all the charges. The accused appellant Shyam Sunder @ Sundariya @ Samundra and Satpal and the co-accused Satpal @ Pali were convicted for the offences under Section 302 IPC and Section 3/25 of the Arms Act. They were acquitted of the charge under Section 120B IPC. Both were sentenced as above. Before the appeal could be filed, the accused Satpal @ Pali passed away and hence, only the accused Shyam Sunder has approached this Court by way of this appeal so as to assail his conviction and the sentences awarded to him by the trial court. 8. Shri J.S. Choudhary, learned Sr. Counsel assisted by Shri Amardeep Lamba, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. Even though the complainant reached the police station immediately after the incident, the FIR came to be lodged at 08.00 PM. i.e. after a delay of four hours for which, no explanation has been offered by the prosecution. He urged that ordinarily, a delay of four hours would not be considered fatal to the prosecution case but, in the present scenario, where the incident was having political implications and, as all the family members of the deceased had reached the police station where senior police officers were present, the FIR should have been lodged promptly. He urged that the delay in lodging of the FIR brings the prosecution case under a grave cloud of doubt. He urged that the delay in lodging of the FIR brings the prosecution case under a grave cloud of doubt. He further contended that there is no direct evidence to link the appellant with the murder of Virendra Singh and as no motive has been attributed to him, the appellant deserves to be acquitted of the charges. The incident had the undertones of a political rivalry from the beginning. None of the witnesses could actually identify the assailants at the time of the incident. However, as the deceased Virendra Singh was an influential political figure belonging to the Rajput community, the entire clan became active and huge demonstrations were made for influencing the investigation. The police officers at the highest level were pressurized by the entire community and the accused persons were implicated and arrested so as to divert the attention. He contended that if the evidence of the star prosecution witnesses i.e. the first informant Vijendra Singh (PW-6), Gyan Singh (PW-2) (the jeep driver), Naresh Singh (PW-1) and Nephu Singh (PW-3) is evaluated, it is manifest that they could not have seen the actual incident and they have apparently modulated their statements to become eye witnesses of the incident. As per Shri Choudhary, there was no possibility that the first informant and the car driver Gyan Singh could have seen or identified the accused as they were sitting inside the vehicle. He pointed out that both these witnesses admitted in their cross-examination that they had proceeded ahead, Virendra Singh was coming from behind and that the gunshots were fired when the distance between the car and Virendra Singh, who was coming from behind, was about 250 ft. He urged that as the distance was significant i.e. nearly 250 ft. and as the incident happened all of a sudden, there was virtually no possibility that the witnesses could have seen or identified the accused when the gunshots were fired. He further urged that there are grave contradictions in the statements of the principal eye witnesses Gyan Singh (PW-2) and Vijendra Singh (PW-6) and the version as set out in the FIR (Ex.P/21). These contradictions are so grave that they go to the root of the matter and destroy the substratum of the prosecution case. He further urged that there are grave contradictions in the statements of the principal eye witnesses Gyan Singh (PW-2) and Vijendra Singh (PW-6) and the version as set out in the FIR (Ex.P/21). These contradictions are so grave that they go to the root of the matter and destroy the substratum of the prosecution case. He further urged that there are grave infirmities in the prosecution case regarding the manner in which the accused allegedly escaped from the scene of the occurrence. While in the FIR, it is mentioned that one of the accused escaped in a Bolero vehicle but while deposing in the Court, the witnesses modulated this version and claimed that the accused ran away on foot. He further urged that the statements of the two star prosecution witnesses Gyan Singh (PW-2) and Vijendra Singh (PW-6) regarding the location from where they saw the entire incident, are totally contradictory and as such, their claim that they could identify the accused during the incident, is falsified. The witness Gyan Singh admitted that when the two assailants fired at Virendra Singh, their back was towards him. Thus, as per Shri Choudhary, it is impossible to believe that the witness would have been in a position to identify the accused at the time of the firing of gunshots. He further contended that the witness Ram Kumar, who was accompanying Virendra Singh, could have been the most important witness of the prosecution but he was not examined at the trial and thus, it is clearly a case of the most material witness having been withheld from the Court and as such, adverse inference deserves to be drawn against the prosecution. He further contended that the witnesses Narpat Singh (PW-1) and Nephu Singh (PW-3) are purely chance witnesses. They are close family members of the deceased. They are residents of Nyangli village and there was no possibility of these witnesses to have been present at the place of the incident and evidently, they were cooked up as witnesses who allegedly saw the accused escaping from the place of incident so as to prepare a back up, in case, the identification of the accused by the principal eye witnesses, came under some doubt. He also contended that the recovery of fire arm allegedly made from the accused appellant is absolutely concocted. He also contended that the recovery of fire arm allegedly made from the accused appellant is absolutely concocted. The accused appellant was arrested as late as on 16.02.2009 without there being any material on the record of the case to link him with the crime and thus, he had plenty of time and opportunity at his disposal to destroy the weapon of offence and hence, it does not stand to reason that he would safely retain the incriminating weapon with himself so that the same could be recovered later. On these grounds, Shri Choudhary implored the Court to set aside the impugned judgment and acquit the accused appellant of the charges. 9. Per contra, learned Public Prosecutor and the counsel for the complainant vehemently and fervently opposed the submissions advanced by the appellant’s counsel. They urged that there was no enmity whatsoever between the four material prosecution witnesses namely the first informant Vijendra Singh (PW-6), Gyan Singh (PW-2), Naresh Singh (PW-1) and Nephu Singh (PW-3), and the accused appellant herein. They were totally unconnected in any manner and thus, there was no reason for the witnesses to have falsely indentified the true assailants. The accused appellant and the deceased Satpal were hired as killers by the political opponents of Shri Virendra Singh and the eye witnesses could not have had any inkling regarding their involvement in the offence. The investigating officer got leads regarding the involvement of the accused in the incident. The accused appellant and the accused Satpal were arrested on 16.02.2009. They were kept Baparda during the period of their police and judicial custody till they were subjected to test identification during the course whereof, the four material prosecution witnesses namely Vijendra Singh (PW-6), Gyan Singh (PW-2), Naresh Singh (PW-1) and Nephu Singh (PW-3), correctly identified them as the persons who had fired the fatal gunshots at the deceased Virendra Singh. They further contended that the factum of recovery of the firearm effected at the instance of the accused appellant has been proved beyond all manner of doubt by the I.O. Rajesh Kumar Sharma (PW-35). The information provided by the accused Shyam Sunder under Section 27 of the Evidence Act regarding the firearm was proved by the I.O. as (Ex.P/73). In furtherance of such information, the accused led the I.O. to the place where the pistol and four cartridges were concealed. The information provided by the accused Shyam Sunder under Section 27 of the Evidence Act regarding the firearm was proved by the I.O. as (Ex.P/73). In furtherance of such information, the accused led the I.O. to the place where the pistol and four cartridges were concealed. These incriminating articles were seized by the I.O. vide seizure memo (Ex.P/57) which was attested by Panch witnesses Sanjay Kumar and Ajay Kumar. One of the Panch witnesses namely Ajay Kumar was examined as PW- 33 and he duly supported the factum of recovery and could not be shaken in his cross-examination. The pistol recovered at the instance of the accused and the empty cartridge seized from the place of incident were sent for comparison to the Ballistic Expert at the FSL who carried out the comparison and issued the report (Ex.P/79) opining that the empty cartridge recovered from the place of the incident and the bullet recovered from the skull of the deceased were fired from the pistol recovered at the instance of accused Shyam Sunder. The learned Public Prosecutor pointed out from the recovery memos and the forwarding memos as well as the evidence of the concerned witnesses that the sequence of events pertaining to the safe custody and transit of these articles, is perfectly in order and complete in all respect. It was contended that there was nothing on record to doubt the evidence regarding the articles remaining in the self same sealed condition till they reached the Laboratory. On these grounds, learned Public Prosecutor and the complainant’s counsel implored the Court to dismiss the appeal and affirm the impugned judgment. 10. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have also minutely re-appreciated the evidence available on record. 11. It is an admitted case of the prosecution that the assailants were not named in the FIR. The informant Vijendra Singh alleged in the FIR (Ex.P/21) that the time was of about 4 O’ Clock in the evening. He alongwith his cousin Virendra Singh had reached Sheetla Chowk. Virendra Singh got down from the vehicle and went towards the barber’s shop. Gyan Singh was driving the vehicle and he (the informant) was sitting on the rear seat. Virendra Singh directed them to turn the vehicle and come back to the same location. He alongwith his cousin Virendra Singh had reached Sheetla Chowk. Virendra Singh got down from the vehicle and went towards the barber’s shop. Gyan Singh was driving the vehicle and he (the informant) was sitting on the rear seat. Virendra Singh directed them to turn the vehicle and come back to the same location. Gyan Singh drove down towards Masjid Road and was in the process of turning the vehicle when they saw that Virendra Singh had returned from the barber’s shop and was approaching the Sheetla Chowk. At that point of time, two boys came there on a red coloured Hero Honda motorcycle having registration number starting with H.R. One of the boys, fired at the back of Virendra Singh who fell down by the impact. Thereafter, the second boy, fired a gunshot below the ear of Virendra Singh. He and Gyan Singh got down from the vehicle and both the boys ran away towards Nehru Bal Mandir School where, an unnumbered Bolero vehicle in which 5-6 persons were sitting, was parked. One of the boys boarded the Bolero vehicle and escaped whereas the other ran away on foot. The persons sitting in the Bolero vehicle were also alleged to be involved in the incident. The boys left their motorcycle at the spot. One of the assailants left behind his footwear. The empty cartridges were lying strewn around at the spot. He could identify the assailants. They took Virendra Singh to the hospital. He further alleged that the incident had been perpetrated by the Member of Parliament Ram Singh Kaswan in conspiracy with Mahesh Fagedia and his family members who were bearing ill-will towards Virendra Singh. This FIR was lodged at 08.00 pm. i.e. just after four hours on the very day of the incident. Manifestly, all the family members of the deceased must have collected at the hospital before the lodging of the FIR and thus, there was no possibility that any details could have been left out from the FIR. Considering the overall factual scenario, we do not feel that there was any delay in lodging of the FIR. 12. Now we proceed to discuss the evidence of the two eyewitnesses Gyan Singh (PW-2) and Vijendra Singh (PW-6) the first informant. Gyan Singh stated in his cross-examination that he was operating his Commander Jeep on rent. He was having the vehicle for the last 8-10 years. 12. Now we proceed to discuss the evidence of the two eyewitnesses Gyan Singh (PW-2) and Vijendra Singh (PW-6) the first informant. Gyan Singh stated in his cross-examination that he was operating his Commander Jeep on rent. He was having the vehicle for the last 8-10 years. He used to casually visit the house of Virendra Singh. He drove the Bolero vehicle of Virendra Singh on the date of the incident and reached Rajgarh with Vijendra Singh and Virendra Singh. They reached the office of Bahujan Samaj Party at the Nardiya Mohalla, Rajgarh. He and Vijendra Singh kept sitting in the vehicle whereas Virendra Singh went to visit the office of BSP. They stayed back in the vehicle for about one hour to one hour fifteen minutes. Then Virendra Singh asked him to proceed to the Nagarpalika Office where they reached at about 01.30 to 02.0 pm. Virendra Singh went into the office and came back at about 03.45 to 04.00 pm. and they proceeded to the office of BSP. All this time, he and Vijendra Singh continued to remain in the car only. Virendra Singh went to a barber’s shop. The witness proved certain spots in the site inspection plan (Ex.P/1). He stated that Virendra Singh came back from the barber’s shop within 5-10 minutes and told them to turn the vehicle around. Rajendra Kumar Patidar and Ram Kumar were also accompanying Virendra Singh at that time. Rajendra went towards the BSP office, however, both Ram Kumar and Virendra went towards Sheetla Chowk which was at a distance of about 200-220 ft. from the position where the Bolero vehicle was stationed. Both Gyan Singh (PW-2) and Vijendra Singh (PW-6) claimed that while they were proceeding towards the Sheetla Chowk, where Virendra Singh was present, two boys came and fired at him. from the position where the Bolero vehicle was stationed. Both Gyan Singh (PW-2) and Vijendra Singh (PW-6) claimed that while they were proceeding towards the Sheetla Chowk, where Virendra Singh was present, two boys came and fired at him. The precise manner in which, Gyan Singh and Vijendra Singh, described the incident, is reproduced verbatim for the sake of ready reference : Gyan Singh (PW-2) ^^ge Hkh 'khryk pkSd dh vksj pys ml le; fojsUnz flag gels nks lks <kbZ lks QwV vkxs pys x;s eSus ihNs ls nks yM+dks dks okj djrs ns[kk] mUgksaus fiLVy ls okj fd;k Fkk tks fojsUnzflag ij fd;k Fkk] okj xnZu ij fd;k Fkk tks dku ds ihNs fd;k FkkA eSus fojsUnzflag ds iM+us ds ckn ns[kk Fkk fd dgkWa dgkaW okj fd;s FksA mUgksaus Hkkxus dh dksf'k'k dh rks fotsUnzflag us ihNk fd;k ij muls eksVjlkbZdy tks yky jax dh Fkh dks LVkVZ djus dh dksf'k'k dh tks LVkVZ ugha gqbZ -------------------------------------------------------nl iUnzg fefuV ckn usQwflag vkSj ujs'k flag esjs ikl vk;s esjs dks oks crk jgs Fks fd eSus nks yM+dksa dks ugs: cky eafnj dh vksj Hkkxrs gq;s ns[ks Fks tks ekfy;ksa ds eksgYys dh vksj vk jgs Fks eSusa mudks ns[kk Fkk muds ikl eksVjlkbZdy FkhA** Vijendra Singh (PW-6) ^^-------jktsUnz iVhj clik dk;kZy; esa mij pyk x;k vkSj gesa fojsUnz us dgk fd xkM+h eksMdj ykvks vkSj oks Lo;a iSny gh lhryk pkSd dh vksj pyus yx x;kA geus T;ksa gh xkM+h eksM+ dj yk;s rks ns[kk fd lkeus ls nks yM+ds vk;s vkSj mUgksus fojsUnz dks xksyh ekj nhA fojsUnz xksyh yxrs gh fxj x;k vkSj mu nks yMdksa esa ls ,d yMdk lh/kk Hkkx x;k vkSj nwljs us eksVjlkbZdy LVkVZ djus yxk] rc eS eksVjlkbZdy okys yM+ds dh vksj Hkkxk rks oks eksVjlkbZdy NksM+ dj Hkkx x;kA** No question was put to Gyan Singh in his cross-examination regarding the distance between the position of the Bolero vehicle and Virendra Singh when the gunshots were fired at him. In the cross-examination of Vijendra Singh, a question was put to him regarding the comparative distance and he stated that while their car was moving, they were at a distance of 200 ft. from Virendra Singh and the assailants were about 20-30 ft. behind him. It is mentioned in the FIR that both the boys left their motorcycle and escaped from the scene of occurrence on foot. from Virendra Singh and the assailants were about 20-30 ft. behind him. It is mentioned in the FIR that both the boys left their motorcycle and escaped from the scene of occurrence on foot. However, Vijendra Singh did not level any such allegation during his examination in chief and only in his cross-examination, he made a statement affirming the same. The fact that the motorcycle having registration number starting with H.R. was abandoned by the boys is duly corroborated from the site inspection plan (Ex.P/1) and site inspection memo (Ex.P/1A) wherein, the motorcycle is shown lying at point No.B. Since the motorcycle was left behind at the spot by the assailants while escaping, the number thereof was readily available to be noted and mentioned in the FIR. The version of Gyan Singh regarding the distance from where the gunshots were fired, is loosely corroborated by the medical testimony which indicates that the gunshots were made from a close range. However, there exists a significant contradiction in this regard in the statement of Vijendra Singh who stated that he saw the two assailants firing the gunshots when they were about 20 ft. away from Virendra Singh. Both witnesses stated that they identified the accused while they were trying to escape from the scene of occurrence, and as the gunshots were fired when the witnesses were at a distance of about 200-220 ft. from the place where the deceased was shot at, apparently, the possibility of they to have observed the exact distance from where the gunshots were fired, was virtually non-existent. Learned defence counsel raised a big issue that it was impossible for the first informant Vijendra Singh (PW-6) and the driver Gyan Singh (PW-2) to have seen and identified the assailants from the comparative position at which, they were sitting vis-a-vis the deceased when the gunshots were fired. These are the only two witnesses examined by the prosecution who claimed to have seen the incident of firing with their own eyes. Ram Kumar, the most material witness, who was admittedly accompanying the deceased, would have been the best witness to unfurl the true story but he was not examined for reasons best known to the prosecution. Thus, adverse inference is required to be drawn against the prosecution for withholding a material witness. Ram Kumar, the most material witness, who was admittedly accompanying the deceased, would have been the best witness to unfurl the true story but he was not examined for reasons best known to the prosecution. Thus, adverse inference is required to be drawn against the prosecution for withholding a material witness. The witnesses Nephu Singh (PW-3) and Naresh Singh (PW-4), resident of Nyangli claimed that they had come to Rajgarh for their personal work. They reached Rajgarh at about 04.30 in the evening. They were present at the turn of the road coming from towards the Sheetla Chowk. At that time, they saw a person running towards them. He was barefooted and ran away, towards the colony (Mohalla). Just behind him, another person who was also barefooted and was wearing a jacket, ran towards the Mohalla within their sight. He was about 25 years of age. Then, they proceeded towards the Sheetla Chowk where a large crowd had collected and there, they heard that two boys had shot at Virendra Singh and had run away. Both these witnesses were made to identify the accused appellant Shyam Sunder and Satpal. The witness Naresh Singh (PW-4) correctly identified Shyam Sunder in the test identification proceedings. Nephu Singh (PW-3), correctly identified both the accused in the test identification parade. They are purely chance witnesses and thus, their evidence has to be viewed with circumspection. 13. Normally, considering the nature of the daredevil manner in which, the assailants acted; and the fact that the witnesses and the assailants were not known to each other; we could have ignored/ overlooked the contradictions pointed out by the defence. But at the trial, the Public Prosecutor as well as the trial court committed a grave blunder which makes the test identification proceedings of the accused appellant as the assailant redundant. The prosecution did not make any endeavour of getting the accused appellant identified in the court as one of the persons who had fired the gunshot at the deceased Shri Virendra Singh. The evidence of the witnesses Gyan Singh (PW-2), Nephu Singh (PW-3), Naresh Singh (PW-4) and Vijendra Singh (PW-6) was recorded by the trial court on the following dates: Gyan Singh (PW-2) 22.02.2014 16.06.2014 Nephu Singh (PW-3) 22.02.2014 14.03.2014 Naresh Singh (PW-4) 14.03.2014 - Vijendra Singh (PW-6) 22.05.2014 16.06.2014 On 22.02.2014 and 16.06.2014, the accused Shyam Sunder was produced in the court from the judicial custody. But on 14.03.2014, when Naresh Singh’s examination-in-chief was recorded, the accused was not produced from judicial custody. The same is the situation on 22.05.2014 when the statement of Vijendra Singh was recorded. Thus, the learned trial court failed in its mandatory obligation to secure presence of the accused while recording the evidence of the witnesses as enshrined under Section 273 Cr.P.C. As the accused was in judicial custody, it was the bounden obligation of the prosecution and the trial court to have ensured production of the accused in the court so that the evidence could be recorded in his presence. Evidence of witnesses recorded in absence of the accused is vitiated as being contrary to the mandatory requirement of Section 273 Cr.P.C. Hon’ble the Supreme Court had considered the import of the provision in the case of Atma Ram vs. State of Rajasthan reported in AIR 2019 SC 1961 . Hon’ble the Supreme Court affirmed the view taken by this Court that the evidence of the witnesses must be recorded in presence of the accused. Though in the said case, direction given by the High Court for fresh examination of the witnesses by securing the presence of the accused from custody and to decide the case afresh was affirmed, but, in the present case, we are not convinced that such an exercise is warranted because the accused has remained in custody for the last more than 10 years and 8 months and thus, it would be a travesty of justice if a de-novo trial is directed at this belated stage and in addition thereto, we may reiterate that the prosecution did not make any endeavour to get the accused identified by the witnesses in the court even when the opportunity was available. During the testimony of all the four eye-witnesses examined at the trial, though the appellant was in judicial custody but, neither did the prosecution act as per law so as to get the accused identified by the witnesses nor did the court act with diligence in this regard. Law is well settled that evidence of test identification is corroborative in nature and can be used only to lend support to the substantial evidence of identification in the Court. 14. The deadbody of Virendra Singh was subjected to postmortem by a Medical Board constituted at the Government Hospital, Rajgarh. Dr. Law is well settled that evidence of test identification is corroborative in nature and can be used only to lend support to the substantial evidence of identification in the Court. 14. The deadbody of Virendra Singh was subjected to postmortem by a Medical Board constituted at the Government Hospital, Rajgarh. Dr. Kamal Kishore (PW-29), one of the Members of the Medical Board upon being examined on oath, proved the postmortem report of the deceased as Ex.P/46. He stated that upon examining the deadbody, three antemortem injuries of the following description were noticed on the deadbody: (i) Antemortem lacerated wound 0.5 cm. X 5 cm. oval shape neck deep 2 cms away from the right side of the jaw. Margins were inverted and with a collar like abrasion. (ii) Antemortem lacerated wound 1.5 cm. X 0.5 cm. oval shape behind the right ear. The margins were inverted with a collar like abrasion. (iii) Antemortem lacerated wound 2.5 cm. X 1.0 cm. neck deep with the margins inverted situated at left side of the neck. The skull bone was found fractured. A metallic foreign body was present in the brain. The cause of death was opined to be syncope by the firearm injury caused to the brain. The metallic foreign body was taken out and was given to the police for FSL. No significant fact/contradiction was elicited in the cross-examination of the doctor. Manifestly thus, it is duly established from the deposition of the medical expert that the cause of death of Virendra Singh was antemortem firearm injury. 15. However, as has been discussed above, the prosecution failed miserably in its duty to seek substantive evidence of identification of the accused when the statement of the witnesses were being recorded. Therefore, even if the contradictions noted above are ignored for the sake of arguments, for the lack of substantive evidence of identification of the accused in the court during the testimony of the witnesses, it cannot be safely concluded that the accused appellant was the person responsible for firing the gunshot at the deceased. Thus, conviction of the accused appellant for the charge under Section 302 IPC cannot be sustained. 16. Thus, conviction of the accused appellant for the charge under Section 302 IPC cannot be sustained. 16. As has already been discussed above, Shri Rajesh Sharma, the I.O. claimed that the recovery of firearm and four cartridges was effected from the house of the accused in furtherance of the information provided by him under Section 27 of the Evidence Act. The I.O. had already recovered empty cartridges from the place of incident. The metallic foreign body recovered from the brain of the deceased and the pistol recovered in furtherance of the information provided by the accused to the I.O. under Section 27 of the Evidence Act and the empty cartridges were all forwarded to the FSL in the intact condition. As per the FSL report (Ex.P/79), the metallic foreign body (copper jacket bullet) recovered from the brain of the deceased and the empty cartridges recovered from the spot were all fired from the pistol recovered at the instance of the accused. Though no significant contention was advanced by Shri Choudhary regarding the link evidence but, we have minutely examined the same. The recovery of firearm was allegedly effected from the accused on 23.02.2019 i.e. after 18 days of the incident. This delay does caste a doubt on the bonafides of the investigating officer’s actions. In addition thereto, when the link evidence is examined, to be specific, when the statement of the Maalkhana Incharge of the Police Station Rajgarh namely Ramkishan (PW-28) is seen, it comes to light that, the packets of the articles seized in this case were forwarded to the FSL, Jaipur on 25.03.2009. These packets were returned back from the FSL with certain objections and were again sent to the FSL on 02.04.2009. The witness admitted, in his cross-examination, that he was not aware as to what precisely were the objections which were flagged by the FSL while returning the articles to the police station. The fact that the prosecution has concealed the nature of objections pointed by the FSL in the Maalkhana articles while returning them to the police station, taints the evidence of sealing of articles and thus, the FSL report cannot be read in evidence. Consequently, there remains no justification whatsoever so as to affirm the conviction of the appellant as recorded by the trial court for the charge under Section 3/25 of the Arms Act. 17. Consequently, there remains no justification whatsoever so as to affirm the conviction of the appellant as recorded by the trial court for the charge under Section 3/25 of the Arms Act. 17. In wake of the discussion made herein above, the appeal deserves to be accepted and the accused appellant deserves to be acquitted by giving him the benefit of doubt. The impugned judgment dated 03.09.2016 passed by the learned Sessions Judge, Churu in Sessions Case No.14/2013 (21/2009) is hereby quashed and set aside. The appellant Shyam Sunder @ Sundariya @ Samundra is acquitted of all the charges. He is in custody and shall be released from prison forthwith if not wanted in any other case. The appeal is allowed in these terms. 18. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court. 19. Record be returned to the trial court forthwith.