JUDGMENT : A.Y. KOGJE, J. 1. This appeal is against the judgment and order dated 30.09.2013 passed by the Additional Sessions Judge, Amreli in Sessions Case No. 42 of 2011 recording conviction of three appellants for offense under Section 302 read with Section 120B of the Indian Penal Code. It is reported that the appellant No. 1-Mahendrabhai @ Munnabhai Alkubhai Vala and appellant No. 2-Pruthviraj Alkubhai Vala are absconding however, considering the decision of this Court in case of Niraj Devnarayan Shukla and Others vs. State of Gujarat, 2015 (3) GLR 2442 , the case of the appellant No. 3 would fall in category 16(1) which reads as under: “16. In view of the ratio laid down by the Apex Court, we are of the opinion that the High Court while dealing with a conviction appeal wherein convict/Advocate is/are not available, following procedure is required to be considered at the time of final hearing. (1) If the Advocate appearing for the appellant-convict is present and is ready to proceed with the appeal, the Court has to decide the same on merits and reasoned judgment is to be delivered even if the convict is absconding. It is needless to say the convict should always be subjected to consequence of his abscondence.” However, as the appellant No. 3 is represented by an advocate, the Court would proceed to take up the appeal of all the appellants jointly. 2. It is the case where the deceased Rasikbhai Valjibhai was fired upon allegedly by the appellants, resulting into his death and such attack was carried out as the deceased was charge-sheeted for murder of Aalkubhai Punjabhai and Bharwad Jaga Manga since the year 1997, but was later on acquitted. As the enmity prevailed on account of the previous incident, it is the case of the prosecution that three appellants carried out the assault with the use of Tamancha, iron pipe and stick respectively. As the enmity prevailed on account of the previous incident, it is the case of the prosecution that three appellants carried out the assault with the use of Tamancha, iron pipe and stick respectively. The incident took place on 19.03.2011 and on the same day, an FIR came to be registered, wherein it was narrated by the complainant-Maganbhai Valjibhai, brother of the deceased Rasikbhai that while his brother had gone for filling up of the tailor/tractor from the quarry in the tractor and was returning on the highway between village Kotdapith and village Untvad, the assailants carried out the attack by first firing and thereafter by assaulting, thereby causing serious injuries, resulting into the death of the deceased. The informant, upon receiving the news of this incident, had immediately proceeded to lodge the FIR. Pursuant to the investigation, charge-sheet came to be filed for offense under Section 302 read with Section 12B of the Indian Penal Code. 3. Upon due compliance with the provisions of Code of Criminal Procedure, the Sessions was committed and as the appellants did not plead guilty, trial commenced with the framing of charge vide Exh.12. The gist of the charge being that on 19.3.2011, at 16:00 hours to 16:30 hours, on Bhavnagar-Rajkot Highway between Kotdapitha and Utvad villages in Babra Taluka of Amreli district, the accused persons, keeping displeasure and animosity over an old dispute between the accused persons and deceased Rasikbhai and in furtherance of criminal intention, hatched a conspiracy and decided to kill Rasikbhai upon finding an opportunity and accordingly, as a part of the pre-planned conspiracy hatched the accused persons, the accused No. 1 opened two rounds of fire on deceased Rasikbhai and injured him and the accused No. 2 and the accused No. 3 caused injury to Rasikbhai on his head and other body parts using sticks with iron cap and caused his death, in front of stone-crusher named Khodiyar Enterprise located between Kotdapitha and Utvad villages and thereby, committed an offence punishable under section-120B of Indian Penal Code. Further, at the above mentioned time, date and place, the accused persons, in furtherance of criminal intention and as a part of pre-planned conspiracy, when deceased Rasikbhai Valjibhai was going to stone-crusher situated near Utvad village on his tractor with reg. no. GJ-3-K-7832 to get grit, the accused persons, chased the tractor of Rasikbhai in Rhino vehicle with reg. no. Further, at the above mentioned time, date and place, the accused persons, in furtherance of criminal intention and as a part of pre-planned conspiracy, when deceased Rasikbhai Valjibhai was going to stone-crusher situated near Utvad village on his tractor with reg. no. GJ-3-K-7832 to get grit, the accused persons, chased the tractor of Rasikbhai in Rhino vehicle with reg. no. GJ-4-Z-179, and upon reaching in front of stone-crusher named Khodiyar Enterprise located between Kotdapith and Utvad villages, at 16:00 hours to 16:30 hours, drove the Rhino vehicle closely beside the tractor of Rasikbhai and from the running vehicle, opened fire on Rasikbhai, who, upon sustaining a bullet injury, fell down from the running tractor and the tractor got off the road and thereafter, the accused persons stopped the Rhino vehicle there and the accused No. 1 opened two rounds fire on Rasikbhai and caused him injury and the accused No. 2 and the accused No. 3 caused injury to Rasikbhai on his head and other body parts using sticks with iron cap and caused his death on the spot and thereby, committed an offence punishable under section-302 read with section-120B of Indian Penal Code. 4. Learned advocates for the appellants have jointly argued that the prosecution has filed to establish the motive. As per the prosecution, in the previous incident of murder, the deceased was also charge-sheeted and had resulted in acquittal five years prior to the incident and that during this five years, there was not a single mishap or any criminal incident involving the deceased. Therefore, the motive could not be established by the prosecution. Learned advocates have submitted that the informant Maganbhai Valjibhai PW-11 was only an informant, but not a witness to the incident though the FIR was filed interestingly. There was no information with this informant as to who carried the attack, as even from the case of prosecution, the eyewitnesses had disclosed the incident to the informant only after one day. Therefore, it was a motivated attempt of the informant to involve the appellants on the basis of mere suspicion and thereafter, the investigation has not been proceeded freely, but in the direction of implicating the appellants in one way or the other. It is submitted that the informant being the Sarpanch of the village, all the witnesses were under the influence of the informant. It is submitted that the informant being the Sarpanch of the village, all the witnesses were under the influence of the informant. It is submitted that though the prosecution is based on the evidence of five eyewitnesses, three eye eyewitnesses have not even supported the case of the prosecution to establish the identity of the appellants as assailants. The other two witnesses are clearly got up witnesses as even from the evidence of these witnesses, it is apparent that they would not be able to view the incident at all. Attention is drawn to the evidence of Arvindbhai Ravjibhai-PW-12, who was riding the motorcycle and PW-15 Bharatbhai Amarsibhai Bhut, who was his pillion to submit that even as per their evidence, the firing was carried from a car which had crossed them and had traveled almost 1½ Km to 2 KM away on road which was a slop and therefore, the visibility is doubtful. 4.1 Not only that, the conduct of these witnesses is also unnatural as immediately after the incident though they were aware of the victim of the fired being Rasikbhai of their village, they have not proceeded to inform anybody in the village though they attended the gathering to mourn the death at the residence of Rasikbhai, where the informant himself was present, but did not disclose. Moreover, their statements were also recorded by the police after three days and six days respectively after the incident. 5. It is submitted that even if the prosecution basis their case on the circumstances, one of the strong circumstances of the Ballistic report regarding the weapon used for assault. The weapons so discovered during the course of investigation and the bullet fired do not match and therefore also, even on this important circumstance, the prosecution has failed. It is submitted that the panch witnesses have not supported the case of the prosecution with regard to the discovery of the weapon. 6. As against this, learned Additional Public Prosecutor has submitted that PW-18 Doctor Amit Hemantbhai Divecha, who has performed the PM note has indicated the injuries received by the deceased and such injuries which are fatal could be caused by firearm and therefore, the homicidal death of Rasikbhai was well established by the prosecution. 6. As against this, learned Additional Public Prosecutor has submitted that PW-18 Doctor Amit Hemantbhai Divecha, who has performed the PM note has indicated the injuries received by the deceased and such injuries which are fatal could be caused by firearm and therefore, the homicidal death of Rasikbhai was well established by the prosecution. Learned APP submitted that the appellants were well versed with the mitigating of investigation and therefore, deliberately misdirected the investigation by producing the weapon different than which was used, thereby misdirected the entire investigation. 7. Learned APP submitted that such a conduct of the appellants is also evident from the evidence of witness PW-17 Ranjitbhai Jeturbhai Khachar at Exh.68, who has deposed that four wheeler vehicle (Rhino) was purchased by the accused No. 1 and there was a mischief with regard to the registration number. Undoubtedly, the vehicle was used in commission of offense and that vehicle was belonging to the accused No. 1 and therefore, the accused persons are directly connected to the offense through the vehicle. Learned APP further submitted that this evidence would support the case of the prosecution as the prosecution is based on the version of eyewitness. At least three eye-witness have indicated the incident and have identified the assailants in the Court. Therefore, also the conviction of this accused was justified. 8. As against this, in rejoinder, learned advocates for the appellants submitted that the identity of the vehicle is also questionable, as none of the witnesses have given the registration number during the course of investigation or during the deposition. Not only that, one of the witnesses had identified the vehicle which was having word ‘Mantri’ written on the back side of the vehicle. Further, the vehicle recovered did not mention any such word written on the back side of the vehicle and therefore, there is no connection of the vehicle thus recovered and running in the name of appellant No. 1 with the offense. It is also submitted that the identity is also questionable as the Investigating Officer has not undertaken the Test Identification Parade, particularly when the eyewitness have themselves deposed that they were able to identify two out of the four assailants however, third and fourth assailants were unknown persons, qua them there is no Test Identification Parade. 9. Heard learned advocates for the parties and perused the documents placed on record. 9. Heard learned advocates for the parties and perused the documents placed on record. Undoubtedly, by examining the Medical Officer, who has performed the PM note, the prosecution has been able to establish a homicidal death. However, the question is role attributed to the appellants in carrying out the offense. It is the case of the prosecution that the appellant No. 1 armed with firearm had fired upon the deceased, whereas appellant Nos. 2 and 3 had assaulted with pipe and stick respectively. 10. The case of the prosecution is based upon the version of five eyewitness however, eyewitness Ibrahimbhai Bahadurkhan Aghlani PW-8 at Exh.44 has been declared hostile. Similarly, PW-9 Laghrabhai Ranchhodbhai Gohil at Exh.45 is also an eyewitness, has been declared hostile. Another eyewitness is being PW-10 Sureshbhai Mansingbhai Chauhan at Exh.55, however, this witness has not named in his deposition and has identified the vehicle to be Qualis vehicle. This witness was also declared hostile. Therefore, now the case of the prosecution would be based on the evidence of other eyewitness namely PW-12 Arvindbhai Ravjibhai at Exh.59 and the pillion rider, evidence of PW-15 Bharatbhai Amarshibhai. 11. As regards the evidence of Arvindbhai Ravjibhai (PW-12/Eh.59), the cross-examination reveals that the claim of this witness is of a chance witness. It is claimed by this witness that he had seen four persons coming out of the car. He refers to the names of accused Nos. 1 and 2 and two unknown persons. He has not been in a position to identify two other persons. This witness also admitted that Rasikbhai was acquitted before 3 to 4 years of the present incident and he was regularly going out and attending his agricultural work. This witness also admitted that he had not stated in his statement about any quarrel taking place between the accused and the deceased Rasikbhai. Though this witness soon after the incident went to his village Kanpar and had seen the Police Officers in the village, he did not inform the police or the complainant about his witnessing the incident. The witness categorically admitted that after he learnt about the murder of Rasikbhai and had gone to the residence of Rasikbhai at night, he did not disclose about his witnessing the incident. The witness categorically admitted that after he learnt about the murder of Rasikbhai and had gone to the residence of Rasikbhai at night, he did not disclose about his witnessing the incident. Hecategorically admitted that he was called by the police on 22.03.2001 at about 11.00 a.m. to 12.00 p.m. The conduct ofthis witness for not disclosing this fact till 22.3.2011, though he had opportunity to disclose the same to the police on 19.3.2011, when he had returned to his residence and seen the police in the village. 12. The prosecution has not explained delay in recording statement of Arvindbhai Ravjibhai (PW-12/Exh.59) and Bharatbhai Amarsinhbhai (PW-15/Exh.65). The statements of both these witnesses came to be recorded on 22.03.2011 though both these witnesses claim that they informed the complainant about their witnessing the incident on next day of the incident, the same is not substantiated from the evidence of the complainant. Furthermore, the evidence of Bharatbhai Amarsinhbhai clearly discloses that though he knew accused no. 3 Shivkubhai being maternal uncle of accused nos. 1 and 2, he had not seen Shivkubhai at the place of the incident. Thus, the witness further admitted that when he went to village, he learnt from village that the minor uncle Shivkubhai was also involved in the incident and that fact was not stated by him to the Police. Thus, this witness Bharatbhai Amarsinhbhai though had not seen the accused no. 3 at the place of the incident, identifies him in the Court as accused. Both these witnesses are chance witnesses and though they claim to have narrated the incident to Maganbhai Valjibhai-brother of the deceased, on next day, yet their statements were not recorded on 20th/21st March, 2011. Thus, the delay of recording the statements of these witnesses whose presence is not natural at the place of offence, is clearly suggestive that they have come forward to support the complainant. 13. It further appears that these witnesses have learnt about the incident in the village and after 3 days their statements are recorded on 22nd. It also appears that the complainant being Sarpanch of the village, the witnesses have come forward to support the prosecution. 14. The prosecution evidence of Bharatbhai Amarsinhbhai (PW-15/Exh.65), who is a pair witness of Arvindbhai Ravjibhai. This witness heard noise of firing and driver of the Tractor falling down on the ground. It also appears that the complainant being Sarpanch of the village, the witnesses have come forward to support the prosecution. 14. The prosecution evidence of Bharatbhai Amarsinhbhai (PW-15/Exh.65), who is a pair witness of Arvindbhai Ravjibhai. This witness heard noise of firing and driver of the Tractor falling down on the ground. It is the case of this witness that the car which had overtaken their motorcycle was occupied by four persons and the accused Mahendra had fired two shots on the tractor driver, who had fallen down. It is also the case of this witness that the accused was inflicting blows with sticks. It is the case of the witness that two unknown persons whose face could not be seen by him and one of them was having stick. It is the case of this witness that they being afraid, took back their vehicle to go to their village Kanpar. It is the case of the witness that when they reached their village, he had noticed two police car near the house of Mahendra and being afraid of the incident had not disclosed anything to anyone including family members. The witness claims that when he reached Kanpar he learnt about someone committing murder of Rasikbhai Valjiphai and also learnt that the assailants were Mahendra Aalkubhai, his brother Pruthvi and maternal uncle of Bhadliwala. 15. Thus, the evidence of Arvindbhai Ravjibhai and Bharatbhai Amarsinhbhai clearly revealed that they did not disclose their witnessing the incident to the police for more than four days. Though the witnesses claimed about the presence of the police in the village, they have not gone to the police to give their statements. Both the witnesses clearly 22.03.2011. Thus, the conduct of the witnesses and more particularly admission by witness Bharatbhai about absence of accused no. 3 Shivkubhai at the scene of offence clearly revealed that these two witnesses are not wholly reliable. 15.1 The evidence of the complainant also appears to be based on hearsay information and source of his information is not coming on record. Thus, the complainant, who is on inimical term with the family of the accused, has given their names on suspicion in the complaint and the prosecution witnesses have tried to substantiate the averments of the complaint. 16. The prosecution claims that the accused no. Thus, the complainant, who is on inimical term with the family of the accused, has given their names on suspicion in the complaint and the prosecution witnesses have tried to substantiate the averments of the complaint. 16. The prosecution claims that the accused no. 1 Mahendrabai fired two shots after the deceased Rasikbhai fell down on the ground from Tractor on firing of first shot. The Investigating Officer recovered two fired cartridge cases from the scene of offence. The prosecution examined ballistic expert Surendra Purshottam Patriwala (PW-23/Exh.84). 17. This witness, on examination of two fired empty cartridges recovered at the scene of offence, came to the conclusion that both the cartridges were fired from one firearm. It is further claimed by this witness that the comparison of fired cartridges (Mark-G and Mark-G/2) revealed that those fired cartridges were not fired from the double barrel bridge loading Tamancha (Mark-H), which is sought to be discovered at the instance of the accused, by the prosecution. Thus, the Ballistic Expert's evidence clearly rules-out the use of double barrel bridge loading tamancha (Mark-H) by the accused, as empty fired cartridges found at the scene of offence (G and G-2) were not fired from the same fire-arm (Mark-H). Thus, the scientific evidence does not substantiate the act of firing by accused no. 1 from the firearm (Mark-H) which is alleged to have been discovered at the instance of the accused. 18. However, the learned Judge came to the conclusion that medical evidence as to entry-wound and damage on iron sheet cover on hosepipe of tractor with opinion of Ballistic Expert that the firing has taken place from 12 bore shot-gun and the 12 bore shot-gun Tamancha is discovered at the instance of the accused, the prosecution has proved that it is the act of fire by the accused has resulted into death of the dec, the learned Judge though conscious of the fact that the Ballistic Expert's opinion about find of two cartridges at the scene of offence not being fired from fire-arm - Mark-H clearly rules-out the Mark-H being 12 bore shot-gun Tamancha involved in the commission of the offence. Thus, the learned Judge has totally brushed aside the scientific evidence without any cogent reason. 19. Thus, the learned Judge has totally brushed aside the scientific evidence without any cogent reason. 19. Thus, there is conflict of fire-arm used by the assailant atthe time of incident and conflict about the so-called discovered fire-arm allegedly used by the accused, the scientific evidence thus rules-out the use of the said firearm in view of find of two cartridges at the scene of offence not being fired from the discovered 12 bore Tamancha. 20. The submission of learned APP with regard to the witness PW-17 about the sale of the vehicle in question to the appellant No. 1 would fall into insignificance as the prosecution is unable to establish the usage of the very car in the offense. Firstly, none of the eyewitness, who claimed that fire was done from the car have given any registration number of the vehicle and the only short sure identification of the vehicle as revealed by the eyewitness was mentioned of name ‘Mantri’ on the backside of the vehicle. The entire evidence including seizure of the vehicle in question does not indicate any word ‘Mantri’ written backside of the vehicle and therefore, though the vehicle was seized from the accused No. 1, the same cannot be said conclusively to be a vehicle used in the offense. Only from the make of the vehicle, identity cannot be established as the Investigating Officer in his deposition has deposed that on the same road, several such vehicles are plying everyday. Moreover, there is variation in the version of the eyewitness regarding make of the vehicle. Three of the eyewitness have stated that the vehicle was of Qualis make, whereas two eyewitness have stated to be of Rhino make. 21. With regard to the submission of learned APP regarding the conduct of the accused for misleading the investigation by producing different firearm weapon, such argument cannot be accepted as it is the duty of the investigation to place on record the correct nature of evidence and therefore, if at all any flaw is committed at the investigation end, obviously benefit would be in favour of the accused persons. The Court has perused extensively the judgment of the Trial Court and finds that conviction recorded is erroneous and for the reasons stated hereinabove, the Court is of the view that in view of the aforesaid discussions, the prosecution has failed to establish the charge beyond reasonable doubt considering the discrepancies as mentioned in the preceding paras. 22. In view of the aforesaid discussion, the appeal is allowed. The impugned judgment and order dated 30.09.2013 passed by the Additional Sessions Judge, Amreli in Sessions Case No. 42 of 2011 is quashed and set aside. Bail bonds of the appellants stand discharged. The appellants are hereby set at liberty, if not required in any other offense. R&P to be sent back to the concerned trial Court.