JUDGMENT : Ali Zamin, J. 1. Heard Sri Gaurav Sharma, learned counsel for the appellant and learned A.G.A. for the State. 2. This is an appeal against the judgment and order dated 30.06.2004 passed in S.T. No.373 of 2003 (State vs. Laeeque @ Dharmanga & others) arising out of Case Crime No.140 of 2003, under Sections 302, 504 I.P.C. and S.T. No. 374 of 2003 arising out of Case Crime No.268 of 2003, under Section 4/25 of the Arms Act registered at P.S. Puranpur, District Pilibhit whereby the Additional Sessions Judge, Court No.1, Pilibhit has convicted the accused appellant Laeeque @ Dharmanga under Sections 302, 504 I.P.C. and Section 4/25 of the Arms Act and sentenced to undergo life imprisonment under Section 302 I.P.C., one year rigorous imprisonment under Section 504 I.P.C. and one year rigorous imprisonment under Section 4/25 of the Arms Act and acquitted Jalaluddin and Mashroof under Section 302 I.P.C read with Section 34 and 504 I.P.C. 3. Prosecution case, in brief, is that on 28.03.2003 at about 7:00 P.M. Akram son of the informant Shamshuddin had gone to Babboo Pradhan to take money. On the slab, in front of the house of Babboo Pradhan, Raffique, Aslam his son and several persons of the Mohalla were sitting. At that time, Laeeque @ Dharmanga, Jalaluddin and Mashroof came there. Laeeque @ Dharmanga abusing his son Akram by saying that he had pushed him at the time of filling water, all of a sudden he took out a knife and stabbed him on his chest. On the shrieks of his son, the persons sitting on the slab rushed there immediately and all the three accused persons fled away. Hearing shriek, informant also reached the spot and he took his son to the hospital in an injured condition where he succumbed to his injuries. The incident has been witnessed by the persons present on the spot. 4. On the basis of the written report (Ext.Ka-1) same day at 20.10 P.M., Chik FIR (Ext.Ka-3) under Section 304, 504 read with 34 I.P.C. was registered and G.D. Entry (Ext.Ka-4) was prepared. Investigation of the case was entrusted to S.I., Rampal Singh (P.W.9), who proceeded to the spot along with S.I., S.D. Mahesh Prasad. He recorded the statements of informant Shamshuddin, scribe of written report and prepared spot map (Ext.Ka-10) on the pointing out of the informant. Investigation of the case was entrusted to S.I., Rampal Singh (P.W.9), who proceeded to the spot along with S.I., S.D. Mahesh Prasad. He recorded the statements of informant Shamshuddin, scribe of written report and prepared spot map (Ext.Ka-10) on the pointing out of the informant. On his instruction S.I. Mahesh Prasad prepared the inquest memo (Ext.Ka-14). He also prepared challan lash, photo lash, letter to the Chief Medical Officer, letter to R.I. and Specimen Seal (Ext.Ka-15 to 19) and dispatched the dead body for post mortem. 5. Dr. Vimal Kumar (P.W.3), conducted autopsy on the body of the deceased and prepared the post mortem report (Ext.Ka-2). According to post-mortem report following injuries were found on the body of the deceased: "1. Stab wound 2.8 cm x 1.2 cm x chest cavity deep just below and lateral to left nipple. Margin of wound are sharp." In internal examination 5th rib deep below the injury no. 1, was found cut. Left lung was punctured. Left chamber of the heart was incised as well, which was through and through its wall. In the cavity of the left chest, around 600 ml blood was found. In opinion of the doctor death of the deceased is possible on 28.03.2003 at 7.00 P.M. due to haemorrhage and shock caused by aforesaid injury with a sharp edged weapon like knife. The death of the deceased is likely to have occurred around 24 hours before the conducting of the post mortem on 29.03.2003 at 3.30 P.M.. 6. During investigation, on the pointing out of the accused Laeeque @ Dharmanga, Investigating Officer recovered the knife on 28.05.2003 and prepared recovery memo (Ext.Ka-5). On the basis of the recovery memo, first information report under Section 4/25 Arms Act, Case Crime No. 268 of 2003 was registered at 21:10 P.M. on 28.05.2003. Investigation of the case was entrusted to S.I., Vivek Malik (P.W.8). After completing investigation, on 30.05.2003 the investigating officer (P.W.9) of the Case Crime No. 140 of 2003 submitted charge-sheet (Ext.Ka-12) under Sections 304, 504 and 34 I.P.C. against the accused Laeeque @ Dharmanga, Jalaluddin and Mashroof. Investigating Officer of Case Crime No. 268 of 2003 also completing the investigation submitted charge-sheet under Section 4/25 of the Arms Act (Ex.Ka-9) against the accused Laeeque @ Dharmanga on the same day. 7. Investigating Officer of Case Crime No. 268 of 2003 also completing the investigation submitted charge-sheet under Section 4/25 of the Arms Act (Ex.Ka-9) against the accused Laeeque @ Dharmanga on the same day. 7. Since the offence under Section 304 I.P.C. was exclusively triable by the court of sessions, the Chief Judicial Magistrate, Pilibhit committed the accused for trial to the court of sessions where the Case Crime No.140 of 2003, under Section 304, 504 and 34 I.P.C. was registered as S.T. No.373 of 2003 and Case Crime No.268 under Section 4/25 of the Arms Act was registered as S.T. No. 374 of 2003. The Sessions Judge made over the above cases for trial to the Additional Sessions Judge, Court No.1, Pilibhit. Learned Additional Sessions Judge framed charge under Section 302 and 504 I.P.C. and 4/25 Arms Act against appellant. 8. Prosecution, to prove its case, produced 9 (nine) witnesses namely, P.W.1 Shamshuddin, informant of the case, P.W.2 Aslam and P.W.4 Mohd. Rafique are the witnesses of the fact. P.W.3 Dr. Vimal Kumar conducted the autopsy of the deceased, P.W.5 Constable Narpat Singh, scribe of the F.I.R., Case No.140 of 2003, under Sections 304, 504 I.P.C. and P.W.6 Constable Raghunath Singh, witness of the recovery of knife, P.W.7 Constable Har Prasad, scribe of F.I.R. Case Crime No. 268 of 2003, under Section 4/25 of the Arms Act and G.D., P.W.8 S.I. Vivek Kumar Malik, Investigating Officer of Case Crime No. 263 of 2003, under Section 4/25 of the Arms Act and P.W.9 S.I. Rampal Singh, Investigating Officer of Case Crime No.140 of 2003, under Sections 304, 504, 34 I.P.C. are the formal witnesses of the case. 9. Statements of the accused persons were recorded under Section 313 Cr.P.C.. Appellant-accused Laeeque @ Dharmanga in his statement has stated that on account of groupism the case proceeded against him. Mashroof has stated that he does not know why the case proceeded against him and accused Jalaluddin has stated that case proceeded against him due to enmity. Accused persons led no evidence in their defence. 10. Learned Additional Sessions Judge after hearing the argument of the parties and perusal of the record has passed the impugned judgment and order as disclosed in para 2 of the judgment. Hence, the present appeal. 11. Accused persons led no evidence in their defence. 10. Learned Additional Sessions Judge after hearing the argument of the parties and perusal of the record has passed the impugned judgment and order as disclosed in para 2 of the judgment. Hence, the present appeal. 11. Learned counsel for the appellant submits that according to prosecution version incident took place in front of the house of Babboo Pradhan but P.W.9 Rampal Singh, Investigating Officer has stated that near the place of incident there is no house of Babboo Pradhan and the place of incident is not the house of Babboo Pradhan. Therefore, place of incident is not proved. He further submits that no independent witness has been examined although according to prosecution, four-five independent witnesses were present at the time of incident. From the prosecution evidence recovery of knife is also doubtful. Prosecution has miserably failed to prove its case. Learned Trial Judge without proper appreciation of evidence has convicted the appellant, which is not sustainable and it is liable to set aside. 12. Per contra learned A.G.A. submits that P.W.2 Aslam and P.W.4 Mohd. Rafique are the eye witnesses of the incident and they have supported the prosecution version. Learned Trial Judge properly appreciating the evidence adduced by the prosecution has convicted and sentenced the appellant. No interference is required by this Court. 13. From the evidence, it is evident that Akram died of homicidal violence. It is evident from the medical evidence adduced in the evidence in the case. P.W.3 Dr. Vimal Kumar has prepared post mortem report, Ext.Ka-2, according to which an stab wound injury of 2.8 c.m. x 1.2 c.m. chest cavity deep below of lateral left nipple and margin of wound was found sharp. In internal examination 5th rib was found cut and left lung was found punctured. Cause of death was excess bleeding and shock due to the ante mortem injury. From the above, it is clear that Akram died due to injury sustained by him. 14. According to Ext.Ka-1, incident occurred at about 7:00 P.M. on 28.03.2003. Akram son of informant Shamsuddin had gone to Babboo Pradhan. In front of house of Babboo Pradahn on the slab Mohd. Rafique, Aslam, the son of informant and several persons were sitting, at that time Laeeque @ Dharmanga, Jalaluddin, Mashroof came there. 14. According to Ext.Ka-1, incident occurred at about 7:00 P.M. on 28.03.2003. Akram son of informant Shamsuddin had gone to Babboo Pradhan. In front of house of Babboo Pradahn on the slab Mohd. Rafique, Aslam, the son of informant and several persons were sitting, at that time Laeeque @ Dharmanga, Jalaluddin, Mashroof came there. Laeeque @ Dharmanga abusing Akram, all of sudden took out a knife and stabbed him on his chest. On his shriek the persons sitting on the slab rushed there to save him but all the three accused persons fled away. Hearing the shriek informant also rushed to the place of incidence and took him away to the hospital in injured condition where he died. 15. P.W.1 Shamshuddin has supported the first information report version through his testimony and stated that knife injury was caused to the left side of the chest. In cross-examination on asking that Jalaluddin and Mashroof were involved in the assault, he has replied that he could not see them causing the incident and has admitted that on the telling of the people he mentioned the wrong name in the first information report. He has further stated that he had seen the dead body at the place of incidence. From the content of Ext.Ka-1 and his deposition, it transpires that he is not an eye witness of the incident and has lodged the report on the telling by others. 16. P.W.2 Aslam has stated that he along with Mohd. Rafique and other persons of the village was sitting on a slab in front of the house of Babboo Pradhan. His brother Akram had come to Babboo Pradhan. Laeeque @ Dharmanga, Jalaluddin and Mashroof also came there. Laeeque @ Dharmanga abusing him, all of sudden took out a knife and stabbed him on the left side of his chest. On his shrieks the witness and other persons sitting on the slab rushed to him, but the accused persons fled away towards north side. In cross-examination he has stated that when he heard shrieks he rushed to the place of incidence. At the time of shrieks he was on the road. He was at a distance of near about 200 yards from the place where the deceased was stabbed. When he reached the spot, the crowd had not assembled, only about four-five persons were present. On hullabaloo his mother and father came there. At the time of shrieks he was on the road. He was at a distance of near about 200 yards from the place where the deceased was stabbed. When he reached the spot, the crowd had not assembled, only about four-five persons were present. On hullabaloo his mother and father came there. From his statement in cross-examination, it transpires that at the time of the incident this witness was not sitting on the said slab. Thus, the testimony of P.W.2 Aslam is not supported by Ext.Ka-1, regarding his sitting on the slab at the time of incident. P.W.1 in his cross-examination has also stated that at the time of incident there was less darkness. In that situation being at a place situated at a distance of 200 yards, it would not be possible to see the incident. As such P.W.2 Aslam is also not an eye witness of the incident. 17. P.W.4 Mohd. Rafique has been produced by the prosecution as eye witness of the incident, who has stated that he was sitting on the slab on the side of the Pradhan, whose name he does not know; at that time Aslam, he and one more person were sitting, whose name he is not able to remember. Akram had come to take his wage from the Pradhan, Laeeque @ Dharmanga, Jalaluddin and Mashroof also came there. Laeeque @ Dharmanga started abusing and catching the deceased Akram stabbed him in his right side of the chest. They rushed to rescue him but the accused persons fled away. As per his statement, he was sitting on a slab in front of house of a person situated on the side of the house of Pradhan and the place of incident is not in front of house of Pradhan. He has also stated that the accused stabbed the deceased with a knife on the right side of the chest, whereas according to statement of P.W.1 Shamshuddin and P.W.2 Aslam as well as post mortem report, Ex.Ka-2, the injury to the deceased was caused on the left side of the chest. As per statement of P.W.2 Aslam, apart from him P.W.4 Mohd. Rafique and several persons were sitting on the slab whereas as per P.W.4 Mohd. Rafique, alongwith him only P.W.2 Aslam and one other person were sitting on the slab. As per statement of P.W.2 Aslam, apart from him P.W.4 Mohd. Rafique and several persons were sitting on the slab whereas as per P.W.4 Mohd. Rafique, alongwith him only P.W.2 Aslam and one other person were sitting on the slab. Thus, on the point of number of persons sitting on the slab at the time of the incident, evidence of P.W.2 Aslam and P.W.4 Mohd. Rafique, the alleged eye witnesses is contradictory. On points of sitting place of witnesses, place of incident and seat of injury to the deceased, statement of P.W.1 Shamshuddin, P.W.2 Aslam and P.W.4 Mohd. Rafique are contradictory to each other. All contradictions indicate that this witness is also not an eye witness of the incident that is why the above contradictory statements have been made. 18. As per statement of P.W.1 Shamshuddin and P.W.2 Aslam incident occurred in front of the house of Babboo Pradhan. P.W.9 S.I. Rampal Singh, I.O., in his cross-examination has stated that at the place of incident there is no house of Babboo Pradhan. In Ext.Ka-10, place of incidence has been shown by mark 'X'. Place of falling of deceased Akram is shown by mark 'B'. Around mark 'X' and mark 'B', no house of Babboo Pradhan has been shown while the spot map has been prepared by the I.O. on the pointing out of the P.W.1, Shamshuddin, the informant. Therefore, from the evidence led by the prosecution the place of incident is not proved. 19. In the case of Syed Ibrahim vs. State of A.P., (2006) 10 SCC 601 , P.W.1 therein had indicated four different places to be the place of occurrence. The Hon'ble Supreme Court held that when the place of occurrence itself has not been established, it would not be proper to accept the prosecution version. 20. In Gautam Chaturvedi vs. State of U.P., 2019 SCC Online All 4307, as per F.I.R. the incident occurred when P.W.1 therein, his nephew P.W.4 Amit Gupta and the deceased were talking amongst themselves standing in the lane outside their house, and the deceased parted company to leave for some place where he had to go. 20. In Gautam Chaturvedi vs. State of U.P., 2019 SCC Online All 4307, as per F.I.R. the incident occurred when P.W.1 therein, his nephew P.W.4 Amit Gupta and the deceased were talking amongst themselves standing in the lane outside their house, and the deceased parted company to leave for some place where he had to go. He had reached a point in front of the house of Rajendra, bearing premises no.2/32, when the appellant arrived in an inebriated condition and after a sharp exchange of words between appellant and the deceased, the appellant stabbed him in the presence of witnesses but in his dock evidence, he stated that the appellant arrived at the entrance to the deceased's home, premises no.2/123, where after some exchange of words, the appellant stabbed the deceased. Therefore, it was held that the prosecution has not been able to formally establish the place of occurrence. 21. In the instant case as discussed above, testimony of P.W.1, Shamshuddin, P.W.2 Aslam and P.W.4 Mohd. Rafique are not consistent with regard to sitting on the slab situated in front of house of the Babboo Pradhan, place of incident, seat of injury to the deceased, sitting of persons on the slab. According to the prosecution, apart from appellant two more persons also participated in the offence but prosecution failed to prove their participation. 22. According to P.W.9 S.I. Rampal Singh, I.O., he recovered the knife used in the incidence on pointing out of the accused-appellant and prepared recovery memo Ext.Ka-5. He has also proved spot of recovery of knife as Ex.Ka-13. In cross examination he has stated that the house from which the recovery was made has three doors. One is in the North side, one is in the East side and one is in the West side. He has also stated that towards door of East there is a court-yard. P.W.8 S.I. Vivek Malik, I.O. of the Case Crime No. 268 of 2003, under Section 4/25 Arms Act has proved the spot of recovery as Ext.Ka-8. According to Ex.Ka-8 as well Ex.Ka-13, spot map prepared by P.W. 9 Rampal himself, there is no door and courtyard towards East side of the house. Thus, testimony of P.W.9 S.I. Rampal Singh, I.O. is contradictory to spot map Ex.Ka-8 and Ex.Ka-13. According to Ex.Ka-8 as well Ex.Ka-13, spot map prepared by P.W. 9 Rampal himself, there is no door and courtyard towards East side of the house. Thus, testimony of P.W.9 S.I. Rampal Singh, I.O. is contradictory to spot map Ex.Ka-8 and Ex.Ka-13. P.W. 8 S.I. Vivek Malik also has recorded the statement of Zahoor Ahmad and Irfan, who have not supported the recovery of the knife. P.W.9 S.I. Rampal Singh has also stated in the cross-examination that he prepared the spot map on 15.06.2003 and proved it as Ext.Ka-13. While knife was recovered on 28.05.2003 and investigation was entrusted to P.W.8 S.I. Vivek Malik. After entrustment of investigation to P.W.8 S.I. Vivek Malik preparing of the spot map by him on 15.06.2003 indicates that the investigation is not fair. S.I. Vivek Malik (P.W.8) in his cross-examination has admitted that S.I. Rampal Singh is senior to him, who recovered the knife. Investigation by a junior officer in a case registered by a senior officer also can not be said to be fair as held by this Court in Raghubir and others vs. State of U.P., 1996 ALL.L.J. 551. The knife used in the incident has also not been produced before the trial court. Forensic report is not available on record, so that it can be said that the knife was used in the incident and it is linked with the incident. 23. In view of the above discussion, we find that investigation of the case relating to recovery is vitiated. There is no evidence to prove that recovered knife was used in the alleged incident. The evidence adduced on the point of alleged recovery also does not inspire confidence. Consequently, recovery is not proved beyond reasonable doubt. In view of the above discussion, prosecution has failed to prove its case against the accused-appellant for commission of offence under Section 302, 504, I.P.C. and 4/25 Arms Act. 24. Therefore, on conspectus of facts and circumstances of the case we find that prosecution evidence of P.W. 1 Shamshuddin and P.W.2 Aslam is inconsistent with P.W.4 Mohd. Rafique regarding place of sitting of the witnesses, place of the incident, seat of injury to the deceased and persons sitting on the slab. P.W.1 Shamshuddin, P.W.2 Aslam and P.W.4 Mohd. Rafique are not eye witnesses of the incident. Recovery of knife on the pointing out of the appellant is also not proved. Rafique regarding place of sitting of the witnesses, place of the incident, seat of injury to the deceased and persons sitting on the slab. P.W.1 Shamshuddin, P.W.2 Aslam and P.W.4 Mohd. Rafique are not eye witnesses of the incident. Recovery of knife on the pointing out of the appellant is also not proved. The prosecution has miserably failed to prove its case against the appellant. The judgment and order passed by the learned Trial Judge is, therefore, not sustainable and is liable to set aside. The appeal is, therefore, allowed. The impugned judgment and order mentioned above convicting and sentencing the appellant Laeeque @ Dharmanga is set aside. He is acquitted of the charges under Sections 302, 504 I.P.C. and 4/25 Arms Act. The appellant is in jail. If he is not wanted in any other case, he shall be released forthwith provided he files his personal bond and two sureties in accordance with Section 437 (A) Cr.P.C. to the satisfaction of the Court concerned. Office is directed to communicate this decision to the Court concerned forthwith and send back the record. Before concluding, this Court must put on record its appreciation of the efforts put in by Mr. Gaurav Sharma, learned Amicus Curiae in providing valuable assistance to the Court. It is, therefore, directed that a sum of Rs. 15,000/-be paid to Mr.Gaurav Sharma, learned Amicus Curiae towards fees. The above amount shall be paid to Mr. Gaurav Sharma, learned Amicus Curiae by the Registry of this Court within 15 days.