JUDGMENT : Pankaj Bhandari, J. 1. Accused-appellant has preferred this Criminal Appeal aggrieved by judgment of conviction and order of sentence dated 31.10.2015 passed by learned Additional Sessions Judge No.2, Kota (Raj.), in Sessions Case No.23/2013 (State of Rajasthan vs. Bhanwar Singh), whereby accused-appellant has been convicted for the offences under Section 302 I.P.C. and Section 4/25 of the Arms Act and sentenced to undergo life imprisonment with a fine of Rs.15,000/-, in default of payment of fine to further undergo 6 months’ additional simple imprisonment and one year’s simple imprisonment with a fine of Rs.2,000/-, in default of payment of fine to further undergo one month’s additional simple imprisonment, respectively and both the sentences have been ordered to run concurrently. 2. Succinctly stated the facts of the case are that on 28.12.2010, complainant-Manohar Singh lodged a written report (Ex.P-1), at Police Station Mandana, District Kota (Rural) with regard to murder of his brother-Satyanarayan Singh on the basis of which, Police registered the First Information Report No.154/2010 (Ex.P-16) at Police Station Mandana, District Kota (Rural) for the offence under Section 302 I.P.C. and after conducting investigation, Police submitted the charge-sheet against the accused-appellant for the offences under Section 302 I.P.C. and Section 4/25 of the Arms Act. Learned Trial Court framed charges against the accused-appellant for abovementioned offences. Accused-appellant denied charges and claimed trial. Prosecution examined as many as 15 witnesses (PW-1 to PW-15) and 22 documents were exhibited. In defence, Police statement of Babu Singh (Ex.D-1) was also exhibited. Explanation of the appellant-Bhanwar Singh was recorded under Section 313 Cr.P.C., wherein accused stated that he did not commit any offence and that he was falsely made an accused on account of enmity. Learned Trial Court after hearing the arguments vide impugned judgment dated 31.10.2015, convicted and sentenced the accused-appellant for offence under Section 302 of I.P.C. and Section 4/25 of the Arms Act, aggrieved by which, the present appeal has been filed. 3. It is contended by counsel for the accused-appellant that all the material witnesses who were named in the F.I.R. have turned hostile. As per the F.I.R., Manohar Singh (P.W.-1), who is the complainant was an eye-witness and was actually present at the place of occurrence but he clearly stated in his cross-examination that at the time of incident he was at home and he only saw the back of assailant. As per the F.I.R., Manohar Singh (P.W.-1), who is the complainant was an eye-witness and was actually present at the place of occurrence but he clearly stated in his cross-examination that at the time of incident he was at home and he only saw the back of assailant. It is also contended that Gupti, which was recovered vide Ex.P-8, is said to have been recovered at the instance of accused on the basis of information given by him under Section 27 of the Evidence Act (Ex.P-14), but same was not found to be stained with blood. It is further contended that none of the witnesses in their statements have shown the presence of the accused-appellant at the place, where the incident occurred. 4. It is also contended that Manohar Singh (P.W.-1), was a teacher in the school, who was away from the place of occurrence and his school timings were 10:30 a.m. to 04:30 p.m. and the incident alleged to have been taken place at 04:30 p.m., hence, presence of Manohar Singh (P.W.-1) at the place of occurrence is also doubtful. Learned counsel, therefore, prayed that appeal of the appellant may be allowed and he may be acquitted of the charges levelled against him. 5. Learned Additional Government Advocate has supported the judgment passed by the learned Trial Court and argued that Babu Singh (P.W.-6) had seen the accused-appellant running from the place of occurrence. Manohar Singh (P.W.-1) specifically stated that he saw the accused-appellant stabbing the deceased with Gupti, thus, there was ample evidence before the learned Trial Court to convict the accused-appellant. 6. We have considered the contentions and have carefully perused the evidence adduced on behalf of the prosecution. 7. Manohar Singh (P.W.-1), who is the real brother of the deceased-Satyanarayan Singh, is the complainant in this case. As per the written report lodged by him, he had seen the accused stabbing the deceased on his chest and stomach. This written report was given at the place of occurrence at 06:45 p.m. on 28.12.2010 and the incident as per the F.I.R. took place between 04:00 p.m. to 04:30 p.m. Manohar Singh (P.W.-1) in his examination in chief, has shown his presence at the place of occurrence, however, in his cross-examination, he has admitted that he was at his residence at the time of occurrence. However, in the later part of the cross-examination, he has admitted that from a distance of 22 to 25 feet, he has seen the occurrence and that back of the assailant was towards him. As per this witness, he informed the Police immediately when he reached the spot. However, from perusal of the complaint, it is revealed that the complaint was lodged at 06:45 p.m. i.e. after more than two hours of the incident. P.W.-1 has also admitted that his school timings were from 10:30 a.m. to 04:30 p.m. He has also admitted that the temple, near which the occurrence took place, is not visible from his house. Thus, in our considered view his testimony to see the occurrence is doubtful. 8. In the F.I.R. lodged by Manohar Singh, however, he has shown the presence of witnesses Jagdish Singh (P.W.-10), Laxman Singh (P.W.-11) and Babu Singh (P.W.-6), at the place of occurrence but Jagdish Singh (P.W.-10) and Laxman Singh (P.W.- 11), have turned hostile. 9. Babu Singh (P.W.-6), in his examination in chief, has stated that he has seen the accused running from the place of occurrence, however, in his cross-examination he has admitted that the fact that he saw accused/appellant-Bhanwar Singh, running away from the occurrence, is not mentioned in his Police statement. He has also admitted that he has not seen anyone quarreling there. He has also stated that he was the first person who reached the place of occurrence and that Laxman Singh and Manhohar Singh came after him. Thus, from perusal of statement of Babu Singh (P.W.-6) also, it is evident that neither he saw the incident nor Manohar Singh (P.W.-1) was present at the place of occurrence. 10. Prabhu Singh (P.W.-8), in his examination in chief has shown himself to be an eye-witness. However, in his cross-examination, he has admitted that Laxman Singh had narrated the incident to him. He has also admitted that incident did not take place before him and that he came to know about the incident afterwards. 11. Ratan Lal (P.W.-9) has stated only in his examination in chief that after hearing noise, he came out of his house and found the deceased lying in a pool of blood but he has not mentioned anything about the presence of the accused-appellant at the place of occurrence. 11. Ratan Lal (P.W.-9) has stated only in his examination in chief that after hearing noise, he came out of his house and found the deceased lying in a pool of blood but he has not mentioned anything about the presence of the accused-appellant at the place of occurrence. In his cross-examination, he has admitted that Laxman Singh and Manohar Singh, came after him at the place of incident. 12. Thus, from the evidence on record, it appears that neither any of the witnesses produced by the prosecution have seen the appellant stabbing the deceased nor they have shown the presence of the appellant at the place of occurrence. 13. The other piece of evidence which has been made a ground for convicting the accused, is the recovery of Gupti. From perusal of the State Forensic Science Laboratory Report (S.F.S.L.) (Ex.P-15), it is evident that there was no blood detected on Gupti and this Gupti was recovered from Katcha house, which is evident from perusal of the recovery memo (Ex.P-8). Ram Ratan (P.W.- 4), a witness to recovery memo, has also admitted that Gupti was recovered from an open house, which was not locked and the Gupti was not found stained with blood. Both the witnesses, in presence of whom the recovery of Gupti was made, were the Police Officials and no independent witnesses were procured by the investigating team. Thus, the recovery of Gupti also cannot be made basis for holding the accused-appellant guilty. 14. Learned Trial Court has given undue weightage to the recovery of Gupti for convicting the appellant. Learned Trial Court has clearly erred in placing reliance on the statement of Manohar Singh (P.W.-1), who as per the other witnesses and as per his own version also, was not present at the place of occurrence. Learned Trial Court has further drawn adverse inference on account of accused not explaining his presence in the statement recorded under Section 313 Cr.P.C. Learned Trial Court has clearly erred in appreciating the evidence also. It is indeed a clear case of no evidence, still the accused was convicted and remained in custody for a period of about 13 years. 15. In the result, the present Criminal Appeal filed by the appellant, deserves to be and is accordingly, allowed. It is indeed a clear case of no evidence, still the accused was convicted and remained in custody for a period of about 13 years. 15. In the result, the present Criminal Appeal filed by the appellant, deserves to be and is accordingly, allowed. The judgment of conviction and order of sentence dated 31.10.2015 passed by learned Additional Sessions Judge No.2, Kota (Raj.) in Sessions Case No.23/2013 (State of Rajasthan vs. Bhanwar Singh), is quashed and set aside. The present appellant is acquitted of the charges levelled against him. The accused-appellant is in jail and he be set at liberty forthwith, if not required in any other case or for any other purpose. 16. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Apex Court. The bail bond will be effective for a period of six months.