JUDGMENT : 1. This criminal appeal is directed against the judgment and order dated 16.7.2014, passed by the learned Additional Sessions Judge/Special Judge (Essential Commodities Act), Mainpuri in Sessions Trial No. 82 of 2005, arising out of Case Crime No. 254 of 2004, under Section 302 IPC, Police Station – Bichhwan, District – Mainpuri; whereby the appellant Jasveer Singh has been convicted under section 302 IPC and sentenced to life imprisonment along with fine of Rs.25,000/- and in default of payment of fine to undergo two years additional rigorous imprisonment. 2. Prosecution case proceeds on a written report (Ex.Ka.1) of Megh Singh (PW-1), as per which, his nephew Pushppal Singh S/o late Totaram (deceased), aged 30 years used to work in Delhi for wages and would often visit his house to meet his family members who were living in the village. The deceased had come home for Diwali. His brother Jasveer Singh S/o late Totaram (accused appellant) was residing in the village and was running a Grocery Shop. The mother of the accused and deceased namely Anarkali was virtually blind and was residing with the family of the deceased. The deceased came to the accused a day earlier asking for money for the treatment of their mother but the accused refused to part any sum. An altercation took place between the two brothers at around 7.30 in the evening whereafter the accused went inside his house and came armed with a Tamancha (country-made pistol) and fired on the deceased in front of the door of the house. The deceased fell and died shortly, thereafter. On hearing the gunshot public gathered at the place of occurrence including Ramesh Chandra S/o Kedar Singh, Bahadur Singh S/o Vrindavan Singh, Maharaj Singh S/o Kanauri Lal, Nem Singh S/o Vir Sahai and dead body is lying at the spot. 3. On the basis of aforesaid written report, a first information report (Ex.Ka.-10) has been registered at Police Station – Bichhwan at 10.45 PM, on the date of incident i.e. 30.11.2004. The accused was later arrested and on his pointing out a country-made pistol has been recovered on 18.12.2004 from the open agricultural field in the presence of Saitan Singh alias Narendra Singh S/o Sardar Singh Lodhi and Ramsharan S/o Badan Singh Lodhi, pursuant to which a subsequent FIR under Section 25 Arms Act has been registered on 18.12.2004 (Ex.Ka.4). The accused was later arrested and on his pointing out a country-made pistol has been recovered on 18.12.2004 from the open agricultural field in the presence of Saitan Singh alias Narendra Singh S/o Sardar Singh Lodhi and Ramsharan S/o Badan Singh Lodhi, pursuant to which a subsequent FIR under Section 25 Arms Act has been registered on 18.12.2004 (Ex.Ka.4). It is pursuant to these two FIRs that the accused appellant has been charged with offences under Section 302 IPC and 25 of the Arms Act and ultimately convicted under Section 302 IPC and sentenced to life. 4. As per Investigating Officer (PW-10), he arrived at the place of occurrence at about 12.30 in the night. Panchayatnama is also on record as per which intimation of the offence was received on 30.11.2004 at 7.30 pm. There is, however, a distinct overwriting in the date which apparently was 1.12.2004 upon which 30.11.2004 has been superimposed. The panchayatnama has commenced at 7.15 in the morning on 1.12.2004 and concluded at 9.00 am. The deceased was found wearing a full sleeve check brown colour (Matmaila) shirt and a green colour lungi. He was also carrying a muffler. The inquest witnesses found that the the deceased had sustained a gunshot injury but to know the exact cause of death postmortem be got conducted. The body was thereafter sealed and sent to mortuary for the postmortem. The postmortem report is on record as Ex.Ka.2, as per which, the deceased was a man of average built and rigor mortis was present on the dead body. The cause of death as per postmortem is shock and hemorrhage as a result of following ante mortem injury:- “Firearm entry wound 3 cm x 2 cm x on right side abdomen. 10 cm below to umbilicus at 7 ‘O’ Clock position. Blackening present around the wounds.” 5. The postmortem report also records that two metallic pellets have been recovered from the dead body. There is however only one wound of entry. 6. The statement of alleged eye-witnesses Ramesh Chandra and others was recorded by the police, whereafter chargesheets have been submitted against the accused appellant, both, under Section 302 IPC as well as under Section 25 of Arms Act. 7. There is however only one wound of entry. 6. The statement of alleged eye-witnesses Ramesh Chandra and others was recorded by the police, whereafter chargesheets have been submitted against the accused appellant, both, under Section 302 IPC as well as under Section 25 of Arms Act. 7. On the basis of aforesaid two chargesheets the magistrate took cognizance and referred the matter to the Court of Sessions where two distinct session trials have been registered, namely Sessions Trial No. 82 of 2005 in respect of offence under Section 302 IPC; whereas Sessions Trial No. 83 of 2005 in respect of Section 25 of Arms Act. The charges were explained to the accused in Hindi by the Court on 28.4.2005, who pleaded not guilty and claimed to be tried. 8. The trial commenced in which the prosecution has adduced following documentary evidence:- “1. FIR U/s 302 IPC, dated 30.11.2004 as Ex.Ka.10 2. FIR U/s 25 Arms Act, dated 18.12.2004 as Ex.Ka.4 3. Written Report dated 30.11.2004 as Ex.Ka.1 4. Recovery Memo of Tamancha & one empty cartridge as Ex.Ka. 8 5. Injury Report dated 26.2.2001 as Ex.Kha.1 6. Postmortem Report dated 1.12.2004 as Ex.Ka.2 7. Panchayatnama dated 1.12.2004 8. Final/Form Report U/s 302 IPC dated 25.12.2004 as Ex.Ka.9 9. Final/Form Report U/s 25 Arms Act dated 31.1.2005 as Ex.Ka.13” 9. The prosecution has also adduced oral testimony of Megh Singh (PW-1), Nem Singh (PW-2), Bahadur Singh (PW-3), Ramesh Chandra (PW-4), Kripati (PW-5) and other formal witnesses including Dr. K.C. Bhardwaj (PW-6), who was the autopsy surgeon. 10. PW-1 Megh Singh is the first informant, who has stated that the written report was got scribed by one Saudan Singh (not produced) and proved it. He has verified the contents of the FIR. However, this witness was declared hostile on the request of the DGC (Criminal). In his cross examination, this witness has clearly stated that when he reached the place of occurrence, he found several persons present including the wife of the deceased. He has specifically stated that he has not seen the accused firing on the deceased since he was not present at the place of occurrence at the time of incident. He has denied the suggestion that he is making a false deposition in order to save his nephew. 11. He has specifically stated that he has not seen the accused firing on the deceased since he was not present at the place of occurrence at the time of incident. He has denied the suggestion that he is making a false deposition in order to save his nephew. 11. PW-2 Nem Singh is a neighbour, who has feigned ignorance about any altercation or differences between the deceased and the accused and has clearly stated that it being dark, during night, he could not see as to who fired on the deceased. This witness has also been declared hostile. 12. PW-3 Bahadur Singh is also a neighbour, who too has been declared hostile after he stated in his examination-in-chief that he has not seen the accused firing on the deceased. 13. PW-4 is one Ramesh Chandra S/o Kedar Singh, who has supported the prosecution case and whose testimony, therefore, requires careful examination. This witness has stated that accused fired on the deceased at the door of his house. The bullet was fired from a close distance. As per this witness the deceased was wearing a read T. Shirt and Green Lungi. He also had a angauchha (towel) on his shoulders. He has stated that the accused and the deceased both were like nephews to him. He has stated that the mother of the deceased was blind and for her treatment the deceased had asked for money from the accused but the accused brother denied. Again on the next day i.e. 30.11.2004 at about 7.30 pm an altercation took place between the two brothers regarding it. On hearing the commotion the witness (PW-4) alongwith others including the wife of the deceased, Jasveer, Bahadur, Megh Singh, Maharaj Singh came on the spot. It is then stated that the accused went inside the house and soon came back with a country-made firearm and fired at the deceased in front of the door. The deceased fell and died. In the cross examination this witness has stated that the police had inquired about the incident from him on the date of incident itself, but had not questioned him, thereafter. As per him, the police inquired from him about the incident at 8.00 pm on the date of occurrence. He has stated that the police of Hannu Kheda Police Chowki and Police Station Bichhwan had made inquires from him at 8.00 pm. As per him, the police inquired from him about the incident at 8.00 pm on the date of occurrence. He has stated that the police of Hannu Kheda Police Chowki and Police Station Bichhwan had made inquires from him at 8.00 pm. Although he claims that he knows the police personnel of Police Chowki and Police Station, but he does not know their name. He has stated that Chowkidars of the Village namely Rajendra Singh and Ram Rahis had gone to the Police Chowki Hannu Kheda and Police Station Bichhwan at about 7.30 pm with him. The distance between Police Chowki Hannu Kheda and his village was about 2½ -3 K.M. As it was dark, this witness claims to have gone on foot and reached in about half an hour. It is stated that apart from the village watchman no one had come with him for lodging the FIR. He also stated that he had gone to call the chowkidars himself after the incident. The house of Chowkidar Rajendra was after two house from the house of Ram Rahis. It is stated that the written report to the police was not given by him but he merely informed the police about the incident. The police from Hannu Kheda Chowki came first, whereafter police came from police station Bichhwan. This witness claims to have returned alongwith the police to the place of occurrence at 8.00 pm. In his cross-examination this witness has denied the suggestion that the police arrived at 7.00 am on 1.12.2004. He stated clearly that the police came to the place of occurrence at 8.00 pm and then returned about 2.00 in the night. He also claimed that slippers of the deceased were recovered and a recovery memo was also prepared of it. The witness further stated that for writing the recovery memo son of Deshraj Singh namely Saudan Singh had brought plain paper. He has stated that the written report was scribed by Saudan Singh on which the witnesses (PW-4 and Megh Singh PW-1) had jointly signed and given it on spot to the police. This witness in his cross held later admitted that the accused and the deceased were not his real nephews. He also stated that when the accused went inside the house to get the firearm, he had stopped him and that the deceased was fired in front of the door. This witness in his cross held later admitted that the accused and the deceased were not his real nephews. He also stated that when the accused went inside the house to get the firearm, he had stopped him and that the deceased was fired in front of the door. The bullet had hit on the stomach area of the deceased. He also stated that before arrival of police, he had touched the dead body of the deceased and there were bloodstain on his clothes which was shown to the Investigating Officer. 14. PW-4 has however admitted that a fight took place between him and the accused on 25/26.2.2001 in which the accused had beaten him and he too beat the accused. The accused got injured in this fight. No injuries were caused to the witness PW-4. The statement of PW-4 in that regard is extracted hereinafter:- ^^eSus fnukad 25@26-02-2001 dks tlohj dh ekjihV dh FkhA mlus eq>s ekjk Fkk eSus mls ekjk FkkA bl ekjihV esa tlohj ds pksVsa vk;h gksxhA esjs pksVsa ugh vk;h FkhA eq>s ugha ekywe fd tlohj us mldh fjiksVZ esjs f[kykQ Fkkuk foNoka esa dh Fkh ;k ugh ;g dguk xyr gS fd rc ls yxkrkj esa tlohj ls jaft'k ekurk gksÅa cfYd esjh tlohj ls dksbZ jaft'k ugh gSA ;g dguk xyr gS fd eSa bl jaft'k ds dkj.k >wBh xokgh ns jgk gksÅa A ;g dguk xyr gS fd eSus dksbZ ?kVuk u ns[kh gks vkSj esjs lkeus dksbZ ?kVuk u gqbZ gksA ;g dguk Hkh xyr gS fd jaft’k ds dkj.k eSusa iqfyl ls feydj tlohj dk uke xyr fy[kk fn;k gks ;g dguk Hkh xyr gS fd ?kVuk ds le; tlohj ekSds ij u gksA^^ The witness has denied the suggestion that it is on account of this enmity that he has falsely implicated the accused. 15. PW-5 Kripati is the wife of the deceased and has supported the prosecution case by stating that accused three to four thousand rupees were required for the treatment of the mother but the accused denied to offer half of the amount needed. She stated that an altercation had taken place between the brothers at around 7.30 pm in the courtyard of the house and various persons including Ramesh, Maharaj, Vijay Singh, Urmila, Shishupal came on hearing the commotion. She stated that an altercation had taken place between the brothers at around 7.30 pm in the courtyard of the house and various persons including Ramesh, Maharaj, Vijay Singh, Urmila, Shishupal came on hearing the commotion. It is after this dispute that the accused brought out a country-made pistol and fired on the deceased near brick-road (Khadanja) on the door of the house and the accused fled. She stated that at the time when the deceased was fired upon she was standing close by. 16. In the cross examination PW-5 stated that her husband was not a drunkard. She has further stated that her husband had disputes with several persons on account of which the deceased had received threats from them. The statement of this witness in that regard is reproduced hereinafter:- ^^esjs ifr dk esjs xkao ds fd'kuyky ls >xM+k gqvk Fkk >xM+k esa fd'kuyky dh ckag VwV xbZ FkhA bl ckr dks 4&5 lky gks x;k gS esjs vkneh dh fnYyh esa fl;kjke ls ekjihV gqbZ Fkh fl;kjke ds Hkh pksVs vk;h Fkh esjs vkneh dk jke jru ls >xM+k gqvk Fkk ftlesa jke jru dh ckag VwVh FkhA esjs ifr us xkao ds clUr dks dqYgkM+h ekjh FkhA ;g dguk ;gh gS fd xkao ds fd'kuyky iq= eFkqjh] fl;kjke] jke jru o olUr esjs vkneh ls blh ckr ls jaft'k ekurs Fks vkSj bu yksxksa dh esjs ifr ls cksypky ugha FkhA ;g dguk lgh gS fd bu yksxksa ls >xM+k gqvk Fkk vkSj bu yksxksa us esjs ifr dks tku ls ekjus dh /kedh nh FkhA^^ 17. PW-5 has further admitted in her testimony that the deceased once had intestinal problem which was got treated by the accused appellant by incurring thirty to forty thousand rupees. 18. She has admitted that no body can hear the talks happening inside her house from the house of PW-4. She also stated that in front of the courtyard there is a boundary which is about 6-7 hands (nearly 8-9 ft) and while sitting inside the house one cannot see what is happening on the brick-road (khadanja). 18. She has admitted that no body can hear the talks happening inside her house from the house of PW-4. She also stated that in front of the courtyard there is a boundary which is about 6-7 hands (nearly 8-9 ft) and while sitting inside the house one cannot see what is happening on the brick-road (khadanja). The statement of PW-5 in that regard is also extracted hereinafter:- ^^esjs rhu cPps gS cM+h yM+dh gS rFkk nks NksVs yM+ds gSA vxj esjs ?kj es dksbZ ckrphr py jgh gks vkSj dksbZ cSBk gks rks jes'k ds ?kj ls fn[kkbZ ugha nsrk gSA vkaxu ds lkeus ngyht gS tks 6&7 gkFk Åaph gSA ?kj es cSBdj [kjats dk o ckgj dk vkneh fn[kkbZ ugha nsrk gSA^^ 19. In the cross-examination PW-5 has further stated that on the date when her husband sustained gunshot injuries she was at home waiting for her husband. She claimed that she was waiting for her husband from 7.30 pm so that he may come and have his meals and that such wait continued till 8.00 pm. This part of the statement is also relevant and is extracted hereinafter:- ^^ftl fnu esjs ifr ds xksyh yxh Fkh ml fnu eSa ?kj ij cSBh ifr dk bUrtkj dj jgh FkhA eSa 'kke dks 7-1@2 cts vius ifr dk bUrtkj dj jgh Fkh fd og vk;sa vkSj [kkuk [kk;saA eSus vius ifr dk [kkus ij 8 cts rd bUrtkj fd;k FkkA^^ 20. In the cross-examination of this witness, she further disclosed that she had sent her children to search/locate the deceased but they could not find him. The witness then waited for about half an hour for her husband and when she came out of the house she found dead body of her husband lying on the brick-road (khadanja). The distance of brick-road (khadanja) from her house is about 50 hands (nearly about 75 ft.). The witness then waited for about half an hour for her husband and when she came out of the house she found dead body of her husband lying on the brick-road (khadanja). The distance of brick-road (khadanja) from her house is about 50 hands (nearly about 75 ft.). Aforesaid statement of this witness is reproduced hereinafter:- ^^esus vius vfr dk bUrtkj djrs djrs cPpksa dks ns[kus ds fy, Hkstk Fkk ,d ?kaVk ckn cPps ykSVdj vk;s vkSj dgk fd ikik ugh feys ;s lgh gSA ;g Hkh ;gh gS fd eSus vk/kk ?kaVk vius ifr dk bUrtkj fd;kA tc eS ckgj fudy dj x;h rc esjs ifr dh yk'k [kjatk ij iM+h FkhA esjs ?kj ls [kjatk 50 gkFk nwj gS ;g lgh gSA rc eSus jes'k] f'k'kqiky] es?k flag dks cqyk;k FkkA bl Lrj ij U;k;ky; }kjk iqu% iwNs tkus ij xokg us dgk fd og igys ls ekStwn FksA esjs ?kj dh ngyht ds njokts ls [kjUtk djhc 5 gkFk nwj gSA eSa vius ifr ds ikl rqjUr igq¡p xbZ Fkh rFkk ifr dks idM+ fy;k Fkk esjs diM+ks es [kwu yx x;k FkkA^^ 21. The above extracted statement of PW-5 clearly shows that she was within the house at the time of occurrence of the incident and saw the dead body lying near the brick-road at a distance of around 75 feet from her house. 22. PW-6 is Dr. K. C. Bhardwaj, who has stated that the deceased was a man of average height and had a sustained a gunshot injury of the size of 3 cm X 2 cm on the right portion of his abdomen at 7 ‘O’ clock position. There was blackening. On the internal examination 34 small metallic pellets were found which were sealed and given to the police person. He has also stated in the cross-examination that deceased was fired from a distance of less than 3 feet. PW-7 is the Constable Sanjeev Kumar, who has verified the recovery of fire arm. PW-8 is Constable Bhagwan Singh. He too is a witness of recovery of firearm on the pointing out of the accused. PW-9 is Constable Shivpal Singh, who has proved the chik F.I.R. lodged under Sections 302 I.P.C. 23. PW-10 is the Sub-Inspector Ranveer Singh, who was the Investigating Officer of the first F.I.R. lodged under Section 302 I.P.C. He has proved the recovery of the firearm. PW-9 is Constable Shivpal Singh, who has proved the chik F.I.R. lodged under Sections 302 I.P.C. 23. PW-10 is the Sub-Inspector Ranveer Singh, who was the Investigating Officer of the first F.I.R. lodged under Section 302 I.P.C. He has proved the recovery of the firearm. In the cross-examination, PW-10 has stated that the statement of PW-4 was recorded in the village itself on 01.12.2004. As per the case diary the Investigating Officer arrived at 12.30 am in the night on 01.12.2004 and that no police personnel had come to the place of incident prior to it. 24. On the basis of the evidence so led by the prosecution, the incriminating materials were put to the accused-appellant for recording his statement under Section 313 Cr.P.C. in which he denied his implication. He has stated that PW-4 Ramesh Chandra given a false testimony on account of previous enmity with him. He also claimed that the witness Ramesh Chandra on account of previous enmity and in collusion with the wife of the deceased has lodged a false case against him. 25. On behalf of the defence, DW-1 has been examined to prove the injury sustained by the accused vide report (Ex. Kha-1), dated 26.02.2001, as per which following injuries were caused to the accused on the said date:- “I. Lacerated wound 4.5 x 0.5 cm on the medial part of left forehead just above the left eyebrow. Bone deep and bone exposed bleeding present. II. Abrasion 1.5 x 0.8 cm on the root of nose skin deep oozing of blood present. III. Traumatic swelling on the upper eyelid of left eye.” 26. The trial Court on the basis of evidence led by the prosecution has found the charges levelled against the accused-appellant under Section 302 I.P.C. to be proved beyond reasonable doubt and has consequently convicted the accused and sentenced him to life imprisonment. The Court below has essentially relied upon the testimony of PW-4 and PW-5, since they claimed to have seen the occurrence. Their statement was found to have been corroborated by the autopsy report which was duly proved by the autopsy surgeon. 27. The Court below has essentially relied upon the testimony of PW-4 and PW-5, since they claimed to have seen the occurrence. Their statement was found to have been corroborated by the autopsy report which was duly proved by the autopsy surgeon. 27. Trial Court, however, found that the recovery of Tamancha (country-made-pistol) from the accused-appellant was not proved since there were no independent witnesses to the recovery, and therefore, the accused-appellant has been acquitted in Sessions Trial No. 83 of 2005, arising out of Case Crime No. 271 of 2004, under Section 25 Arms Act. There is no challenge to the judgment on this score. 28. Aggrieved by the conviction of the accused-appellant under Section 302 I.P.C., the accused appellant is before this Court in the present appeal. 29. Sri A. K. Tripathi, learned counsel for the appellant submits that accused-appellant has been falsely implicated on account of enmity with PW-4 and that none of the prosecution witness has actually seen the incident. He submits that this is a case of blind murder and PW-4 has falsely implicated the accused-appellant due to enmity. He further submits that the testimony of PW-4 is not credible and reliable as he is an inimical witness and the enmity stands proved in view of the injury report produced on record vide Ex. Kha-1. He also submits that PW-4 himself admitted the incident of 26th February, 2001, wherein a fight took place between them, in which the accused-appellant sustained injuries. He submits that the Court below has erred in relying upon the testimony of PW-4. Learned counsel for the accused-appellant further submits that the testimony of PW5 also is not credible, inasmuch as, she has admitted that she was in her house waiting for her husband’s arrival and when she came out of the house looking for her husband, she found the dead body of her husband lying on the Khadanja (brick-road). Learned counsel for the accused-appellant submits that court below has erred in convicting the accused-appellant on the basis of evidence, which neither was credible, nor was reliable. 30. Smt. Archana Singh, learned A.G.A. for the State has opposed the contentions raised on behalf of the defence and submitted that the testimony of PW-4 and PW-5 is wholly reliable and the Court below has committed no error in coming to the conclusion that the accused-appellant has committed the offence. 30. Smt. Archana Singh, learned A.G.A. for the State has opposed the contentions raised on behalf of the defence and submitted that the testimony of PW-4 and PW-5 is wholly reliable and the Court below has committed no error in coming to the conclusion that the accused-appellant has committed the offence. She further submits that motive for the offence is given by the prosecution witnesses and the postmortem report clearly corroborates the testimony of the eyewitnesses. 31. We have heard the counsel for the parties and perused the materials on record. 32. The prosecution case is based upon the written report of PW-1, on the basis of which, the F.I.R. has been registered. The written report and F.I.R. have been duly proved during the trial. As per the written report the incident occurred on account of a fight between the accused and the deceased since the accused refused to part with his share of amount needed for the treatment of the mother, hot-talk ensued between the two brothers and the accused went inside the house and came back armed with a country-made pistol from which he fired on the deceased just in front of the door of the house. 33. PW1, who is the informant in the present case has, however, turned hostile. In his examination-in-chief, he has verified the contents of the F.I.R., but has clearly stated that at the time when deceased was hit by the bullet, he was at his home and that he has not seen anyone firing on the deceased. He has also stated that he was not present at the time of incident and that the report was lodged on the basis of information received from the villagers. This witness, therefore, does not help the cause of prosecution. Similar is the situation with regard to PW-2 and PW-3, both of whom have turned hostile. They are otherwise neighbours and have clearly stated that they have not seen the occurrence. 34. The prosecution case is based upon the testimony of PW-4 and PW-5, who are the witnesses of fact and have supported the prosecution version. The trial Court has relied upon their testimony for the purposes of recording conviction and sentence of the accused-appellant. 35. They are otherwise neighbours and have clearly stated that they have not seen the occurrence. 34. The prosecution case is based upon the testimony of PW-4 and PW-5, who are the witnesses of fact and have supported the prosecution version. The trial Court has relied upon their testimony for the purposes of recording conviction and sentence of the accused-appellant. 35. So far as the testimony of PW-4 is concerned, it would be worth noticing at the outset that this witness was on inimical terms with accused-appellant as is apparent from his statement made during cross-examination. This witness has admitted that an incident had occurred on 26th February, 2001, wherein the accused and PW-4 fought with each other, in which the accused-appellant sustained injuries; whereas no injuries were sustained by PW-4. The testimony of PW-4 in that regard has already been extracted above. There is, therefore, a distinct reason available on record for false implication of the accused-appellant at the hands of PW-4. The testimony of PW- 4 has otherwise been minutely examined by us and we do not find it reliable, inasmuch as, this witness has stated that the written report of the incident was given to the police by him, but it is admitted on record that written report was made by PW-1. This witness has stated that he had gone alongwith the village chowkidar to lodge the report and that the police arrived at the place of occurrence at around 8.00 pm. As against such statement of this witness the testimony of Investigating Officer shows that the police arrived only at 12.30 in the night. This witness has also stated that having come to the place of occurrence at 08:00 pm., the police returned and again came back on the next morning. This part of the testimony of PW-4 is clearly contrary to the police papers available on record as also the specific statement of the Investigating Officer. We further find that though PW-4 alleged in his testimony that accused brought out the firearm from his house and fired on the deceased just in front of his door, but the site plan shows the place of occurrence to be the brick-road which is at a distance of 75 feet from the place of occurrence alleged by the witness. The place of occurrence as per the site plan finds corroboration from the testimony of PW-5. 36. The place of occurrence as per the site plan finds corroboration from the testimony of PW-5. 36. Upon examination of records and the evidence led by the prosecution, we find the statement of PW-4 to be wholly unreliable and untrustworthy, inasmuch as, the disclosures made by him are contrary to the police papers and other prosecution witnesses. Even otherwise this witness is on inimical terms with accused-appellant, and therefore, the possibility of accused-appellant being falsely implicated by this witness cannot be ruled out. We, therefore, are of the view that the testimony of PW-4 cannot be relied upon to convict the accused-appellant. 37. This takes us to the last prosecution witness namely PW-5, who happens to be the wife of the deceased. Though she has supported the prosecution case during examination-in-chief, but in her cross-examination she has clearly admitted that she was waiting for the deceased inside her house at about 07:30 pm so that her husband could have his meals. She claims to have waited till 08:00 pm. She also stated that she had sent her children to locate the deceased, but they could not find him. This witness has specifically stated that when she came out of the house to locate her husband, she found his dead body on the brick-road. The statement of PW-5 clearly shows that she has not seen the occurrence happening in the manner as was disclosed by her in her examination-in-chief. She has also admitted that while sitting in her house it was not possible to have seen as to what was happening on the brick-road. 38. Upon careful consideration of the testimony of PW-5, we are, therefore, of the opinion that this witness too has not seen the incident as is alleged by the prosecution. She was within the house and when she came out, she saw the dead body of the deceased. Her testimony, therefore, cannot be relied upon to convict the accused-appellant. Apart from the testimony of PW-4 and PW-5, there is no other evidence of the prosecution on the basis of which the accused-appellant could be held guilty of the offence under Section 302 I.P.C. beyond reasonable doubt. 39. We have also examined the judgment of the Court below which has relied upon the testimony of PW-4 and PW-5, without carefully subjecting their testimony to proper examination. 39. We have also examined the judgment of the Court below which has relied upon the testimony of PW-4 and PW-5, without carefully subjecting their testimony to proper examination. The fact that PW-4 was on inimical terms with the accused and the fact that his statement otherwise contradicted the police papers and other prosecution witnesses stands overlooked. The testimony of PW-5 has also not been properly appreciated for the reasons recorded in our judgment. The weapon of assault has also not been recovered in the present case. In such circumstances, we are of the view that the prosecution has failed to establish the guilt of the accused-appellant beyond reasonable doubt. 40. For the reasons and discussions held above, this appeal succeeds and is allowed. The judgment and order dated 16.7.2014, passed by the learned Additional Sessions Judge/Special Judge (Essential Commodities Act), Mainpuri in Sessions Trial No. 82 of 2005, arising out of Case Crime No. 254 of 2004, under Section 302 IPC, Police Station – Bichhwan, District – Mainpuri, is set aside. 41. The accused-appellant, who is in jail for the last more than 11 years, shall be set to liberty, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C.