JUDGMENT Satyendra Kumar Singh, J. - Both the above appeals arise out of common judgment, therefore, these are being decided by a common judgment. These appeals are filed under Section 374 of Code of Criminal Procedure (for short be called as 'Cr.P.C.') against the judgment dated 3.11.2011 passed by the learned Court of 5th Addl.Sessions Judge, Indore in S.T.No.771/2009 convicting the appellants Sandeep and Jitendra both for the charges punishable under Section 302 read with Section 34 of Indian Penal Code (for short be called as 'IPC') and sentenced to undergo Life Imprisonment with fine of Rs.2,000/- each, in default of payment of fine amount additional rigorous imprisonment for three months each. 1. In addition to the aforesaid appellant Sandeep has been convicted for the charges under Section 27 of Arms Act also and sentenced to undergo rigorous imprisonment of three years with fine of Rs.1,000/-, in default of payment of fine amount additional rigorous imprisonment for three months. 2. The case of the prosecution in brief is as follows:- (i) Deceased Mukesh and his wife complainant Prabha were having a tailoring shop named M/s Jay Tailors in Nagin Nagar, Police Station Aerodrome, Indore. In front of their shop there was a CD shop of the appellant Sandeep. One month before the date of incident deceased Mukesh and appellant Sandeep had an altercation about which appellant Sandeep lodged complaint against the deceased. On the date of incident i.e. on 2.4.2009 at about 21.00 PM appellant Sandeep alongwith appellant Jitendra came to the shop of the deceased and thereafter appellant Sandeep fired on deceased with 0.315 bore country made pistol (Kata). Deceased ran away towards house of R.D.Thakur bearing No.29-D, Nagin Nagar and entered into the corridor of aforesaid house. Appellants chased him and dragged him towards road. Thereafter, started assaulting him with pieces of tiles and bricks on his head, face, neck and other vital parts. Upon hearing the noise of gun shot deceased's wife complainant Prabha came out from her house, which is situated near her shop and reached the spot. She tried to save her husband deceased, but appellants pushed her aside. (ii) Head Constables Sanjay Bhadoriya, Vijendra Sharma, Kailash Mishra and Constables Rajbhan Singh, Gayadeen also reached the spot upon hearing the noise of gun shot and found appellant Sandeep assaulting deceased with pieces of tiles and appellant Jitendra caught hold the deceased. She tried to save her husband deceased, but appellants pushed her aside. (ii) Head Constables Sanjay Bhadoriya, Vijendra Sharma, Kailash Mishra and Constables Rajbhan Singh, Gayadeen also reached the spot upon hearing the noise of gun shot and found appellant Sandeep assaulting deceased with pieces of tiles and appellant Jitendra caught hold the deceased. They caught hold appellant Sandeep, while appellant Jitendra flew away from the spot of the scene. On the same day at about 21.05 PM Head Costable Shobharam after getting the information about the incident from control room registered Rojnamcha Sanha No.116(A) dated 2.4.2009 Ex.P/10 at Police Station Aerodrome, Indore and sent the Police party towards the place of incident. On being telephonically informed by the Head Constable Shobharam from P.S., Aerodrome and also by Constable Rajbhan from the place of incident, Inspector Navratan Singh rushed to the spot. Complainant Prabha and deceased's brother Santosh took the deceased to District Hospital, Indore where he was declared dead. (iii) On being informed by the Compounder of the hospital at about 21.30 PM, Head Constable Shobharam registered the Marg Intimation report Ex.P/3. At about 21.55 PM, ASI Shyam Babu Katare registered the FIR Ex.P/8, on the report of deceased's wife complainant Prabha. Complainant alongwith deceased's brother Santosh returned to the place of incident, where Inspector Navratan Singh in front of them made search of the body of appellant Sandeep and found 0.315 bore country made pistol (Katta) (Article A/2) alongwith one fired cartridge (Article A/3). He seized the same as per seizure memo Ex.P/10, arrested appellant Sandeep as per arrest memo Ex.P/12. Thereafter, seized the blood stained cloth worn by appellant Sandeep as per seizure memo Ex.P/11, prepared spot map Ex.P/9. He also seized plain and blood soaked cotton, blood stained pieces of tiles and bricks as per seizure memo Ex.P/1. Thereafter, in the intervening night on 3.4.2009 at about 4.00 AM made entry about the whole proceedings done by him in the Rojnamcha bearing No.138A Ex.P/8 at P.S., Aerodrome. (iv) On the next day i.e. on 3.4.2009 ASI Shyam Babu Katare after filling Safina form Ex.P/14 called the witnesses and prepared Naksha Panchayatnama Ex.P/13 of the dead body of the deceased at District Hospital, Indore. Vide letter Ex.P/17 sent the same to District Hospital, Indore for postmortem examination, where on the same day at about 13.25 PM Dr. Bharat Prakash conducted the postmortem of deceased's body. Vide letter Ex.P/17 sent the same to District Hospital, Indore for postmortem examination, where on the same day at about 13.25 PM Dr. Bharat Prakash conducted the postmortem of deceased's body. He found several injuries on deceased's head, face and other parts of body alongwith a gun shot oval shaped lacerated wound measuring 1.6 cm. X 1.3 cm. obliquely vertical on his chest, around which tattooing was found present, which was spread in the area measuring 20 cm. X 10 cm. The aforesaid wound tracked 26 cm. with cavity effect through right upper middle lobe ends. A bullet was found between 11th and 12th ribs and muscles. He prepared postmortem report Ex.P/2 and opined that death of deceased occurred due to shock, hemorrhage and excessive bleeding as a result of multiple injuries found on his body within 24 hours from the time of postmortem. He sealed the viscera and bullet found from the body of the deceased and handed over the same to Constable Ankit alongwith specimen seal, which were seized as per seizure memo Ex.P/4. (v) Inspector Navratan Singh arrested appellant Jitendra as per arrest memo Ex.P/7. Vide letter Ex.P/19 sent the seized articles to FSL, Sagar and after completion of investigation filed the chargesheet before the Court of Judicial Magistrate First Class, Indore, who committed the same to the Court of Sessions Judge, Indore. 3. Learned trial Court considering the material prima-facie available on record framed the charges under Section 302 read with Section 34 of IPC and Section 25/27 of Arms Act against the appellant Sandeep, while charges under Section 302 read with 34 of IPC against the appellant Jitendra. Both the appellants abjured guilt and prayed for trial. In their statements recorded under Section 313 of Cr.P.C., they pleaded their false implication in the matter and have examined two witnesses namely; Bhawani (DW- 1) and Ajay Pawar (DW-2) in their defence. 4. Learned trial Court after appreciating the oral as well as documentary evidence available on record convicted appellants Sandeep and Jitendra both for the offences punishable under Section 302 read with Section 34 of IPC and appellant Sandeep for the offence punishable under Section 27 of Arms Act and sentenced them as stated in para 1 of the judgment. 4. Learned trial Court after appreciating the oral as well as documentary evidence available on record convicted appellants Sandeep and Jitendra both for the offences punishable under Section 302 read with Section 34 of IPC and appellant Sandeep for the offence punishable under Section 27 of Arms Act and sentenced them as stated in para 1 of the judgment. Being aggrieved by the said judgment of conviction and order of sentence, appellants have preferred these two appeals for setting aside the impugned judgment and discharging them from the charges framed against them. 5. Learned counsel for both the appellants have raised common contention that impugned judgment passed by learned trial Court is contrary to law and facts on record. All independent eye-witnesses have turned hostile and not supported the prosecution story. Statement of deceased's wife Prabha and deceased's brother Santosh, Head Constable Sanjay Bhadoriya, Constables Rajbhan and Gayadeen, ASI Vijendra Sharma and Head Constable Kailash Kumar are inconsistent on material issues and their presence on the spot at the time of incident is not proved. Appellants were not found present on the spot and were arrested after the incident. Ocular and medical evidences are also inconsistent. The prosecution was unable to prove complete chain of circumstances, therefore, appellants cannot be held guilty and findings with regard to involvement of the appellants in the crime is not sustainable. Thus, impugned judgment of conviction and order of sentence deserves to be set aside and appellants may be acquitted from the charges framed against them. 6. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence submits that judgment so passed by the trial Court is based on proper appreciation of evidence available on record. Deceased's wife Prabha, brother Santosh alongwith other eye- witnesses namely; Sanjay Bhadoriya, Rajbhan Singh, Gayadeen, Vijendra Sharma and Kailash Kumar Mishra have fully supported the prosecution story and prosecution has proved its case beyond reasonable doubt, therefore, confirming the judgment of conviction and order of sentence, both the appeals filed by appellants deserve to be dismissed. 7. We have heard the parties at length and perused the record. 8. This case is based on direct as well as circumstantial evidence. 7. We have heard the parties at length and perused the record. 8. This case is based on direct as well as circumstantial evidence. Prosecution has examined Ajay (PW-5), Sonu (PW-6), Prabha (PW-13), Sanjay Bhadoriya (PW-14), Rajbhan Singh (PW- 15), Gayadeen (PW-16), Santosh (PW-17), Sitaram (PW-19), Vijendra Sharma (PW-23), Kailash Kumar Mishra (PW-24) and Dinesh (PW-25) as eye-witnesses alongwith other witnesses and exhibited as many as 21 documents in its support. 9. Independent witnesses Ajay (PW-5), Sonu (PW-6), Sitaram (PW-9) and Dinesh (PW-25) have not supported the prosecution story and have been declared hostile, while deceased's wife Prabha (PW-13), brother Santosh (PW-17) and Police officials Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-16), ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar Mishra (PW-24) have supported the prosecution story. Appellants have challenged their presence on the spot at the time of incident, but they have not challenged the fact that on the date of incident deceased was assaulted by gun shot as well as by pieces of tiles and bricks. During cross- examination of aforesaid eye-witnesses it has been suggested on behalf of the appellants that deceased was having criminal record and used to extort money from others, due to which he was assaulted by unknown person. 10. Babulal (PW-1) deposed that on the date of incident at about 21.00 PM he alongwith deceased's wife took injured deceased from the place of incident to District Hospital, Indore in his autorikshaw bearing No.MP-09-T-3031. Deceased's wife Prabha (PW-13) deposed that her husband deceased was declared dead there. Head Constable Shobharam (PW-4) deposed that on the same day i.e. on 2.4.2009 at about 21.30 PM after receiving the information from Jigar Singh, Compounder, District Hospital, Indore, he registered Marg Intimation Report Ex.P/3 about the death of the deceased. ASI Shyam Babu Katare (PW-21) deposed that on the next day i.e. on 3.4.2009 after preparing Naksha Panchayatnama Ex.P/13, he vide application Ex.P/17 sent the dead body of the deceased for postmortem examination. 11. Dr. Bharat Prakash (PW-3) deposed that on the same day i.e. on 3.4.2009 at about 13.25 PM he conducted the postmortem of the dead body of the deceased and found in all fifteen injuries, out of which twelve injuries were caused by hard and blunt object, while two injuries were caused by hard and sharp object and one injury was caused by gun shot. He specifically stated and reported in his postmortem report Ex.P/2 that almost all the injuries except gun shot injury were found on head, fore head, face, neck and other vital parts of the deceased's body, while oval shaped obliquely vertical gun shot injury measuring 1.6 cm. X 1.3 cm. tracked 26 cm. with cavity effect through right upper middle lobe ends, around which tattooing spread in the area 20 cm. X 10 cm. was found on his chest. He further stated and reported that a bullet was found between 11th and 12th ribs and muscles of his body. He further stated and reported that death of the deceased was occurred due to shock, hemorrhage and excessive bleeding as a result of multiple injuries found on his body within 24 hours from the time of postmortem. 12. Appellants have not challenged the aforesaid fact, hence this fact is not in dispute that on the date of incident at about 21.00 PM deceased was assaulted by gun shot, hard and blunt as well as hard and sharp object and sustained grievous injuries as mentioned in the postmortem report Ex.P/2 and he died due to shock, hemorrhage and excessive bleeding as a result of aforesaid multiple injuries found on his body. During cross-examination of I.O., Navratan Singh (PW-26) as well as seizure witnesses Punjabrao Deshmukh (PW-2) and also neighbor of R.D.Thakur, Babulal (PW-1), who took the deceased in injured condition from the place of incident to District Hospital, Indore in his autorikshaw bearing No.MP-09-T-3031. Appellants have not challenged the fact that after the incident plain cotton alongwith blood soaked cotton and pieces of blood stained tiles and bricks were seized from the place of incident, which is near to R.D.Thakur's house bearing No.29-D, Nagan Nagar, Indore as per seizure memo Ex.P/1. Therefore, this fact is also found proved that after sustaining gun shot injury deceased was assaulted at the place of incident as shown by the prosecution in its spot map Ex.P/9. 13. So far as involvement of the appellants in the aforesaid crime is concerned, deceased's wife complainant Prabha (PW-13) deposed that on the fateful day since 7.30 PM to 9.00 PM, she was present in her husband deceased's shop, situated near Nagin Square, P.S., Aerodrome and just before incident she returned to her house, which is situated near the above shop. So far as involvement of the appellants in the aforesaid crime is concerned, deceased's wife complainant Prabha (PW-13) deposed that on the fateful day since 7.30 PM to 9.00 PM, she was present in her husband deceased's shop, situated near Nagin Square, P.S., Aerodrome and just before incident she returned to her house, which is situated near the above shop. She deposed that after hearing the noise when she came out from her house, she saw her husband deceased coming out of the shop and running towards road and appellants were chasing him. She followed them and then saw appellants were dragging deceased from R.D.Thakur house's corridor towards road and thereafter they started assaulting on his head and face by pieces of tiles and bricks. She tried to save him, but they pushed her aside. 14. Deceased's brother Santosh (PW-17) also deposed similar type of story and stated that at the time of incident he alongwith deceased's son was present at deceased's house. After hearing noise he came out from house, reached the spot and saw appellant Sandeep assaulting deceased, while appellant Jitendra caught hold the deceased. Statements of both the above witnesses with regard to their presence at deceased's house before the incident as well as at the place of incident at the time of incident are not consistent. 15. Complainant Prabha (PW-13), in her examination-in-chief, as mentioned above deposed that she herself followed the appellants, who were chasing the deceased and found them dragging deceased from the corridor of the house of R.D.Thakur towards road. She in para 13 of her cross-examination deposed that she reached the spot when appellants were dragging deceased from corridor towards road, while in para 46 of her cross- examination she deposed that after seeing mob near deceased's shop, she went there and thereafter reached to the place of incident. 16. Deceased's brother Santosh (PW-17), in his examination-in- chief, deposed that on the date of incident before incident he went to the deceased's house and at the time of incident he was present at deceased's house alongwith deceased's son. He stated in para 9 of his cross-examination that when he reached deceased's house neither deceased was there nor his wife complainant Prabha was there. He further deposed that after hearing the noise when he came out from the deceased's house, he saw the mob. He stated in para 9 of his cross-examination that when he reached deceased's house neither deceased was there nor his wife complainant Prabha was there. He further deposed that after hearing the noise when he came out from the deceased's house, he saw the mob. He further deposed that when he reached the spot he saw appellant Sandeep was assaulting deceased, while appellant Jitendra caught hold him. He admitted in para 12 of his cross-examination that he did not see any incident on the shop of the deceased. He also admitted in para 19 of his cross-examination that when he reached the spot, he found his brother deceased lying in front of the house of R.D.Thakur i.e. the place of incident and he alongwith deceased's wife complainant Prabha took the deceased to District Hospital, Indore, while Prabha (PW-13) in para 23 and 24 of her cross- examination has specifically denied the aforesaid fact and stated that she alongwith Om Patel took the deceased to District Hospital, Indore in an auto-rickshaw and Om Patel was with her in that auto-rickshaw. She stated that Santosh directly reached the hospital. Both the above witnesses have nowhere stated about the fact that how far was the place of incident from deceased's house from where they reached the spot at the time of incident. I.O., Navratan Singh (PW-26) in his spot map Ex.P/9 has also not shown the deceased's house, which is said to be near to deceased's shop. He in para 23 of his cross-examination deposed that deceased's house is situated towards back side of his shop and there is a way from inside his shop to his house, which is contrary to the statements of Prabha (PW-13) and Santosh (PW-17). From the statement of Prabha (PW-13) and Santosh (PW-17) it appears that deceased's house is situated towards East from Nagin Square, where deceased's shop is shown in the spot map Ex.P/9. 17. Prabha (PW-13) in para 20 of her cross-examination has stated that deceased's shop is situated near Nagin Square, from where, in opposite direction (i.e. in west direction) in the way there is left turn and then after 4-5 shops R.D.Thakur's house is situated, where appellants dragged and assaulted the deceased. 17. Prabha (PW-13) in para 20 of her cross-examination has stated that deceased's shop is situated near Nagin Square, from where, in opposite direction (i.e. in west direction) in the way there is left turn and then after 4-5 shops R.D.Thakur's house is situated, where appellants dragged and assaulted the deceased. From the statements of Prabha (PW-13) and Santosh (PW-17) and also from the perusal of the spot map Ex.P/9, it is clear that it was not possible for any person to see the incident occurring in the corridor of the house of R.D.Thakur from deceased's house or shop. Statements of both the above witnesses are not consistent neither on the point of their presence in the deceased's house before incident nor on the spot at the time of incident. Their statements are also not consistent on the point of time that as to when they reached the spot and what was actually happening there at that time. In the aforesaid circumstances, although presence of deceased's wife Prabha on the spot just after the incident, is proved, but it is doubtful that the incident happened in front of her or deceased's brother Santosh and they saw the incident. 18. In this regard statements of other witnesses Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-16), ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar Mishra (PW-24) are also material. Sanjay Bhadoriya (PW-14) deposed that when he alongwith other aforesaid Police officials reached the spot appellant Sandeep was assaulting deceased, while appellant Jitendra caught hold him. He alongwith aforesaid Police officials surrounded appellant Sandeep, while appellant Jitendra fled away from the spot. He further deposed that at that time deceased's wife also reached there. Constables Rajbhan Singh (PW-15), Gayadeen (PW-16) and Head Constable Kailash Kumar Mishra (PW-14) have also narrated the same story, while ASI Vijendra Sharma (PW-23) deposed that at the time of incident a lady was screaming. None of the above witness has specifically deposed about the presence of Prabha and Santosh on the spot, hence, this fact becomes more doubtful that complainant Prabha (PW-13) and Santosh (PW-17) were present on the spot at the time of incident and saw appellant assaulting the deceased. 19. None of the above witness has specifically deposed about the presence of Prabha and Santosh on the spot, hence, this fact becomes more doubtful that complainant Prabha (PW-13) and Santosh (PW-17) were present on the spot at the time of incident and saw appellant assaulting the deceased. 19. So far as presence of aforesaid Police officials namely; Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-16), ASI Vijendra Sharma (PW-23) and Head Constable Kailash Kumar Mishra (PW-24) on the spot at the time of incident is concerned, complainant Prabha (PW-13), although in her examination-in-chief has stated that at the time of incident some people reached the spot and slapped the appellants, but her above statement is contrary to her own earlier statement Ex.D/5 recorded on the date of incident under Section 161 of Cr.P.C. She neither in her FIR Ex.D/8 nor in her earlier aforesaid statement Ex.D/5 had stated anything about the presence of any such people or Police officials on the spot at the time of incident. Statements under Section 161 of Cr.P.C.of the aforesaid Police officials namely; Head Constable Sanjay Bhadoriya (PW- 14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-16), ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar Mishra (PW-24) were recorded about a month after the incident i.e. on 1.5.2009 and I.O. Inspector Navratan Singh (PW-26) has not shown any reason for the delay. Statements of the aforesaid Police officials are contradictory on the point of chasing of appellant Jitendra. Some of them have stated that no one chased him, while some naming others stated that they chased him. In the aforesaid circumstances, although it is found proved that they reached the spot, but it is doubtful that they reached the spot when appellants were assaulting the deceased. 20. As it has been found proved that deceased's wife complainant Prabha (PW-13) reached the spot just after the incident and took her husband deceased to the District Hospital, Indore and thereafter went to Police Station, Aerodrome and at about 21.55 PM lodged FIR Ex.P/8, wherein names of appellants were specifically mentioned. Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW- 16), ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar Mishra (PW-24) deposed that when they reached the spot, they found appellant Sandeep there. Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW- 16), ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar Mishra (PW-24) deposed that when they reached the spot, they found appellant Sandeep there. I.O., Navratan Singh (PW-26) deposed that after receiving the information from Police Station, Aerodrome as well as from Constable Rajbhan Singh, he reached the spot within 15-20 minutes and found appellant Sandeep surrounded by Police officials. He further deposed that he inspected the spot as well as deceased's shop. In the meantime, complainant Prabha alongwith her brother-in-law Santosh reached there and he also received the copy of FIR Ex.P/8, then he conducted search of the body of appellant Sandeep in front of them. He seized a 0.315 bore country made pistol (Katta) (Article 2) alongwith a fired cartridge (Article 3) in left pocket of pant of appellant Sandeep as per seizure memo Ex.P/10. He then arrested appellant Sandeep in front of them as per arrest memo Ex.P/12. Thereafter, seized his blood soaked pant and shirt (Article A/1) as per seizure memo Ex.P/11. Complainant Prabha (PW-13) as well as her brother-in-law Santosh (PW-17) both have supported the aforesaid fact and stated that when they returned from the Police Station, Police seized country made pistol alongwith fired cartridge and appellant Sandeep's blood soaked pant and shirt (Article A/1) from his possession in front of them. The aforesaid fact finds support from the Rojnamcha Sanha bearing No.138(A) dated 3.4.2009 Ex.D/8, wherein the same intervening night at about 4.00 AM, I.O., Navratan Singh had written the whole proceeding done by him on the spot, wherein it is specifically mentioned that after the incident when he reached the spot conducted search of appellant Sandeep and found 0.315 bore country made pistol (Katta) alongwith fired cartridge. Then, he seized the same alongwith appellant Sandeep's blood soaked cloths. 21. The aforesaid facts have been challenged on behalf of appellant Sandeep and a defence has been taken that he was called from his house and then arrested. Defence witness Bhawani (DW- 1) has supported the aforesaid fact and stated that in the intervening night at about 11.30 PM Police took appellant Sandeep from his house in front of him. 21. The aforesaid facts have been challenged on behalf of appellant Sandeep and a defence has been taken that he was called from his house and then arrested. Defence witness Bhawani (DW- 1) has supported the aforesaid fact and stated that in the intervening night at about 11.30 PM Police took appellant Sandeep from his house in front of him. During cross-examination of both the witnesses of seizure and arrest memo i.e. Prabha (PW- 13) and Santosh (PW-17), it is nowhere suggested on behalf of appellant Sandeep that when Police took him from his house witness Bhawani (DW-1) was present there, therefore, his statement is not reliable. Although, complainant Prabha (PW-13) has stated in her cross-examination that she signed the papers without going through the same, but there is nothing in the statement of Santosh (PW-17) and I.O., Navratan Singh (PW-26) on the basis of which their statements on the point of arrest of appellant Sandeep and seizure of 0.315 bore country made pistol (Katta) alongwith fired cartridge and his blood soaked cloths can be doubted or disbelieved. 22. It has been argued on behalf of appellant Sandeep that statements of Police officials Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW- 16), ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar Mishra (PW-24) are not consistent with the statement of I.O., Navratan Singh (PW-26) on the point of time of arrest of appellant Sandeep and seizure from him, therefore, the same cannot be relied upon. It is true that aforesaid Police officials stated in their statements that when I.O., Navratan Singh (PW-26) reached the spot, he immediately conducted search of the body of appellant Sandeep and seized country made pistol (Katta) alongwith fired cartridge and arrested him, but they have not specifically mentioned the fact that at what time I.O., Navratan Singh did the aforesaid proceeding. I.O., Navratan Singh (PW-26) stated that he reached the spot within 15-20 minutes after receiving the information of the incident at 21.05 - 21.10 hours i.e. he reached the spot at about 21.30 - 21.45 PM and conducted search of the body of appellant Sandeep and thereafter arrested and seized the Articles in between 22.30 - 22.50 PM. His above statement is supported by the statement of Prabha (PW-13) and Santosh (PW-17) as well as Rojnamcha Sanha bearing No.138(A) dated 3.4.2009 Ex.D/8. His above statement is supported by the statement of Prabha (PW-13) and Santosh (PW-17) as well as Rojnamcha Sanha bearing No.138(A) dated 3.4.2009 Ex.D/8. Gap of time as stated by other Police officials is not so long due to which their statements said to be contradictory to the statement of I.O., Navratan Singh (PW-26) on the point of time of arrest of appellant Sandeep. Hence, it is found proved that just after the incident appellant Sandeep was found on the spot or near the spot having 0.315 bore country made pistol (Katta) (Article A/2) alongwith fired cartridge (Article A/3), his blood soaked pant and shirt (Article A/1). 23. As per FSL report Ex.P/20 and statements of Head Constable Irfan (PW-18) and his report Ex.P/15 seized country made pistol (Katta) (Article A/2) was found functional. As per FSL report Ex.P/20 seized fired cartridge was also found fired from the seized country made pistol. FSL report Ex.P/20 also specifically shows that bullet found in the body of deceased Mukesh during his postmortem was fired by the fire arm similar to that of seized country made pistol (Article A/2). FSL report Ex.P/20 also shows that blood stains found on appellant Sandeep's cloths (Article A/1), were of human blood. Appellant Sandeep has nowhere explained the reason as to how and when his seized pant and shirt contained the aforesaid human blood. In the aforesaid circumstances learned trial Court has not committed any error in convicting appellant Sandeep for the offences punishable under Section 302 read with Section 34 of IPC and Section 27 of the Arms Act. 24. So far as appellant Jitendra is concerned, he has been made accused on the basis of ocular evidence. It has already been stated that all independent eye-witnesses namely Ajay (PW-5), Sonu (PW-6), Sitaram (PW-9) and Dinesh (PW-25) have resiled from their earlier statements recorded under Section 161 of Cr.P.C. and have been turned hostile and not supported the prosecution story. Presence of deceased's wife Prabha (PW-13) just after the incident has been found proved, but her presence during the incident is doubtful. Presence of deceased's brother Santosh (PW-17) alongwith Police officials namely; Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-16), ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar Mishra (PW-24) during the incident have also been found doubtful. Statements of aforesaid Police officials are contradictory on the point of chasing appellant Jitendra. Presence of deceased's brother Santosh (PW-17) alongwith Police officials namely; Head Constable Sanjay Bhadoriya (PW-14), Constables Rajbhan Singh (PW-15) and Gayadeen (PW-16), ASI Vijendra Sharma (PW-23), Head Constable Kailash Kumar Mishra (PW-24) during the incident have also been found doubtful. Statements of aforesaid Police officials are contradictory on the point of chasing appellant Jitendra. Some of them have stated that no-one had chased appellant Jitendra, while some naming others stated that they chased him, which creates doubt about the presence of appellant Jitendra on the spot. Prosecution has neither seized his blood soaked cloths or any material indicating his involvement in the crime, therefore, only on the basis of ocular evidence of complainant Prabha (PW-13) it is not save to hold guilty appellant Jitendra for the offence punishable under Section 302 read with Section 34 of IPC. 25. It is admitted fact that before the incident appellants Sandeep and Jitendra lodged the FIR against deceased Mukesh for the offence punishable under Section 307 of IPC, in which deceased remained in custody for about twenty days, therefore, probability of implicating appellant Jitendra in the crime on the basis of doubt cannot be ruled out. Hence, prosecution has proved its case beyond reasonable doubt against appellant Sandeep, but failed to prove its case beyond reasonable doubt against appellant Jitendra. 26. Thus, in view of the aforesaid discussion, this Court does not find any illegality, perversity and arbitrariness in the finding recorded by learned trial Court while convicting the appellant Sandeep, hence Cri.Appeal No.27/2012 is dismissed and the impugned judgment of conviction and order of sentence passed by learned trial Court in respect of appellant Sandeep is hereby affirmed. 27. Cri.Appeal No.1402/2011 filed by appellant Jitendra is hereby allowed and he is acquitted from the charge punishable under Section 302/34 of IPC. He be released forthwith, if not required in any other case. Record of the trial Court be sent back. Let copy of this judgment be retained in the record of Cr.Appeal No.1402/2011.