JUDGMENT : Goutam Bhaduri, J. 1. The present appeal is against the judgment of conviction and order of sentence dated 15-7-2020 passed by the 12th Additional Sessions Judge, Raipur, in S.T. No.193/2016 whereby the appellant has been convicted under Section 302 of the Indian Penal Code (for short ‘the IPC’) and under Sections 4 read with Section 25 (1-b) (b) & 27 (1) of the Arms Act and sentenced him to undergo Life Imprisonment; imprisonment for 3 years and imprisonment for 7 years, respectively with usual default stipulations. All the sentences were directed to run concurrently. 2. (i) Case of the prosecution, in brief, is that prior to 17-6-2016 the appellant Abhishek Diwan lost money in IPL gambling. He obtained loan of Rs.25,000/- from Akash Tiwari (since deceased). Thereafter, within a period of one month he had returned an amount of Rs.35,000/- to the deceased. In this regard, before a week from 17-6-2016 some quarrel took place between the accused and the deceased. For which the accused was holding animosity against the deceased. On 17-6-2016 at about 8.00 pm, the deceased along with his friends namely; Piyush Shukla (PW-14) and Atit Pandey (PW- 11) were near at Baniyan Tree of Rohinipuram Pond where the deceased called the accused by phone. On which the accused went to his house; took pistol with three rounds; and went on his two wheeler vehicle bearing registration No.CG-04-LB-5716 and fired three gun shots whereby the deceased sustained injuries. Thereafter, the accused assaulted the deceased by the handle of pistol and fled away. Piyush Shukla (PW-14) reported the matter at DD Nagar Police Station whereby initially on a First Information Report (FIR) (Ex.P/27) Cr.No.151/16 for offence under Section 307 of the IPC and Sections 25 & 27 of the Arms Act was registered and started investigation. The injured was admitted in the hospital and statements of witnesses were recorded. From the spot the bloodstained soil and one blank cartridge of 7.65 was recovered. During the course of treatment the deceased died. Thereafter, the offence under Section 302 of the IPC was added. (ii) Another co-accused namely; Mohd. Mahmood gave loan of Rs.10,000/- to the accused Abhishek Diwan and advised him to fled away. Thereafter, the accused parked the Activa Scooty at Ashok Millennium Plaza and also kept the pistol in the dicky of said vehicle. The accused purchased one new SIM & Mobile. (ii) Another co-accused namely; Mohd. Mahmood gave loan of Rs.10,000/- to the accused Abhishek Diwan and advised him to fled away. Thereafter, the accused parked the Activa Scooty at Ashok Millennium Plaza and also kept the pistol in the dicky of said vehicle. The accused purchased one new SIM & Mobile. The coaccused used to inform the movements of police to the accused on the said mobile number. (iii) The mobile used by the accused at the time of offence and the newly purchased mobile both were seized by the police. The police after apprehension of the accused on his memorandum recovered the Activa and the pistol which was used to commit the crime. The clothes of the deceased along with the clothes of the accused, which he was wearing at the time of incident, were seized and the same were sent for FSL. As per the order of the District Magistrate, Raipur, dated 5-7-2016, three live cartridges of 7.65 KF were purchased. The seized pistol, live cartridges and the blank cartridge, which was recovered from the spot, were sent for examination to the CFCL (Central Forensic Science Laboratory), Hyderabad and the report was received vide Ex.P/31. According to the prosecution, the CFSL report affirmed the fact that the blank cartridge which was found on the spot of 7.65 mm was fired by the gun as 7.65 KF live cartridges were also fired by the gun which was seized and tested. On the basis of evidence and the statement of witnesses the charge sheet was filed. 3. During trial the appellant/accused abjured his guilt and claimed to be tried. The prosecution examined as many as 19 witnesses and exhibited 54 documents. Upon appreciation of evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced him as mentioned above. Thus, this appeal. 4. (A) Learned senior counsel appearing for the appellant would submit that the eyewitnesses PW-14 Piyush Shukla & PW-11 Atit Pandey have not supported the case of prosecution and they have turned hostile. He would further submit that both the eyewitnesses have not identified the accused and the statement would show that the said witnesses were in heavy intoxication condition and their signatures were obtained on the blank papers. He would further submit that both the eyewitnesses have not identified the accused and the statement would show that the said witnesses were in heavy intoxication condition and their signatures were obtained on the blank papers. Referring to map Ex.P/28 (Crime Detail Form), learned counsel would submit that there is inconsistency in that and the statement of PW-14 Piyush Shukla would show that on the next day the statement was recorded on the coercion under a threat that otherwise he would be inculpated. He would also submit that PW-11 Atit Pandey has affirmed that he did not see the assailant and accordingly PW-14 Piyush Shukla & PW-11 Atit Pandey both were suspects and instead of them, the appellant has been made a scapegoat. In respect of seizure of cartridge, these two witnesses have denied that the blank cartridge was seized. He would submit that on the memorandum of the accused (Ex.P/14), Activa bearing registration No.CG-04-LB-5716, which was seized vide Ex.P/15, on 25-6-2016 at 2.55 am in the night. (B) Learned counsel would submit that according to the prosecution, the Activa from which the pistol was recovered was in the basement of common parking and the police have not recovered any CCTV footage to establish the fact that as to who had parked the said Activa. He would submit that two mobiles i.e. Samsung & Apple and one key, which was of Activa were seized vide Ex.P/16 and the trial Court has believed the evidence to hold that the key would be an incriminating article. According to the learned counsel, there is no evidence on record to prove that with the same key, the dicky of the Activa was opened, wherein the pistol was kept. He would submit that according to the prosecution the deceased was taken to hospital at 8.55 pm, but no dying declaration is on record and the statement of Amit Sharma (PW-10), shows that he has stated that no documents were scribed in the crime branch. The said statement is contradictory to the statement of Investigating Officer wherein he stated that the entire documents were scribed at Crime Branch. (C) Learned counsel would submit that according to PW-10 Amit Sharma, the memorandum was written at DD Nagar, but the document would show that first seizure was made and subsequently the memorandum was drawn. The said statement is contradictory to the statement of Investigating Officer wherein he stated that the entire documents were scribed at Crime Branch. (C) Learned counsel would submit that according to PW-10 Amit Sharma, the memorandum was written at DD Nagar, but the document would show that first seizure was made and subsequently the memorandum was drawn. He would submit that under the circumstances the seizure was already on record prior to memorandum and the same would raise a doubt and the view which favours the accused is required to be supported. He would submit that the seizure witness Dinesh Pandey (PW-16) has completely turned hostile and the Activa, according to the prosecution, was owned by PW-9 Harish Kumar Meharkure and, in turn, it was transferred to different persons. From the statement of PW-9 Harish Kumar, it is evident that he took Rs.15,000/- from one Rocky and in lieu of that amount, he gave Activa to him, but the fact remained that the registration of Activa remained in the name of PW-9 Harish Kumar. (D) Learned counsel would also submit that if the prosecution case is based on recovery of key, which led to opening of dicky of Activa, it is not possible that only single key that too it would belong to same Activa. He would submit that no bullet was recovered from the body of the deceased and from the spot though it has been stated that more than three gun shots were fired, but only one cartridge was recovered and the bullet which was fired should have been recovered from the spot along with cartridge as the other side was blocked by a cement wall and there could have marks on it. He would submit that under the circumstances when the eyewitnesses have not supported the case and proved the recovery, only on presumption the conviction has been made. (E) Learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Abdulwahab Abdulmajid Baloch v State of Gujarat, (2009) 11 SCC 625 to submit that non examination of Ballistic Expert would also lead to fatal the case. (E) Learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Abdulwahab Abdulmajid Baloch v State of Gujarat, (2009) 11 SCC 625 to submit that non examination of Ballistic Expert would also lead to fatal the case. He would also place reliance upon the decision rendered by the Supreme Court in the matter of Ram Singh v State of U.P., 2024 SCC OnLine SC 170 to submit that accused is connected on the basis of recovery and the Activa was recovered from a parking of common stand and the same was accessible to all and there was a difference in the date of recovery. The incident happened on 17-6-2016 and the recovery of Activa and bullet was made on 25-6-2016. He would submit that the circumstantial evidence howsoever is strong cannot be made basis for conviction unless the chain of circumstances is established. Learned counsel would also submit that the entire conviction is based on the presumption and hence no conviction could have been passed on this evidence. Therefore, the appeal deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence. 5. (a) Learned counsel appearing for the State, per contra, would submit that initially the FIR (Ex.P/27) was registered for offence under Section 307 of the IPC. Subsequently, the injured died in the hospital, therefore, the merg was registered and the death since was in the hospital and the said hospital comes under the jurisdiction of Moudapara Police Station, as such, initially ‘0’ report was lodged. He would further submit that though the eyewitnesses namely; PW- 14 Piyush Shukla & PW-11 Atit Pandey have not supported the prosecution, but they have admitted the sound of gun shot, which is proved by memorandum (Ex.P/14). After the memorandum the seizure is made about the Activa and pistol. (b) Referring to the statement of PW-10 Amit Sharma, learned counsel would submit that from the spot a blank cartridge was recovered and as per Ex.P/31 i.e. CFCL report the blank cartridge, which was recovered from the spot, is of 7.65 and to identify that the gun shot was made by the pistol so recovered. He would submit that the chain of circumstances clearly point out and establish the guilt of the accused without any doubt. He would submit that the chain of circumstances clearly point out and establish the guilt of the accused without any doubt. Learned counsel would submit that the impugned judgment is well merited which do not call for any interference of this Court. 6. We have heard learned counsel for the parties at length and perused the record. 7. According to the prosecution, because of animosity concerning monetary issue the accused and the deceased quarrelled openly in the market prior to the date of incident i.e. 17-6-2016 and subsequent to it, to take revenge, the accused was called by the deceased near Baniyan tree of Rohinipuram Pond. At that time, the deceased was in the company of PW-14 Piyush Shukla and PW-11 Atit Pandey. Statement of Piyush Shukla (PW-14) would show that at the time of incident they were consuming liquor and after some time PW-11 Atit Pandey came there and he also started drinking. Thereafter, PW-14 Piyush Shukla went for urination and he heard certain sound of crackers. He did not give heed to it. When he came back he saw that the deceased was lying in a pool of blood. He was shocked to see and he was in an inebriated condition. Thereafter, he went to DD Nagar Police Station and gave information, but no report was lodged. In the Court, this witness has not identified the accused and has further stated that he do not know the accused. 8. The statement of PW-11 Atit Pandey would show that when he reached at the time of incident it was raining. In order to save himself from rain he came under the tree. He saw the deceased and PW-14 Piyush and since they were known to each other they were talking. Thereafter, he went to other side as he received a mobile call. He also heard the sounds of crackers 5-6 times. He saw at a distance of 20 ft. that the deceased was lying on the floor. Having asked to PW-14 Piyush Shukla he said that some one came and after fire he fled away. Thereafter, he went to his house and from there he was taken to DD Nagar Police Station. Both PW-14 Piyush and PW-11 Atit have not identified the accused in the Court and stated that they do not know the accused. Having asked to PW-14 Piyush Shukla he said that some one came and after fire he fled away. Thereafter, he went to his house and from there he was taken to DD Nagar Police Station. Both PW-14 Piyush and PW-11 Atit have not identified the accused in the Court and stated that they do not know the accused. Close scrutiny of cross-examination of both the witnesses would show that nothing has been elicited except the fact that they admitted their signatures on certain documents. Para 6 of the statement of PW-14 Piyush Shukla would show that in respect of the incident no statement was recorded by the police and volunteered that when he went to inform the police since he was under inebriated condition the police raised a doubt on him and after assault, his signatures were obtained on various papers. The paper includes FIR (Ex.P/27). Though the FIR disclosed the fact about the incident that assault was made by the accused, but in view of the statement that he was in the company of the deceased and was highly intoxicated state entire belief cannot be deposed on it. 9. PW-14 Piyush Shukla specifically denied that before signing the document he had read the same. Para 15 of the statement would show that after he went to inform the police he was kept in captivity of DD Nagar Police and he was released on the next day at about 3.00 – 4.00 pm and during such time he was made to sign lot of papers under the pressure of police and stated that he was under fear, so he did it. 10. PW-11 Atit Pandey at para 3 of his deposition stated that he has not seen the assailant, who has committed the murder of the deceased. Para 4 of the statement would show that no seizure was made before him and the police had made him to sit at Police Station for a long period. The cross-examination of the witness further would show that at the time of incident there was heavy rain and it was quite dark and the lights were off on account of power cut. His statement further would show that when a blank cartridge was seized from the spot vide Ex.P/21, it was not before him. The cross-examination of the witness further would show that at the time of incident there was heavy rain and it was quite dark and the lights were off on account of power cut. His statement further would show that when a blank cartridge was seized from the spot vide Ex.P/21, it was not before him. According to this witness, when he was asked to sign those seized papers, he has raised an objection on which the police stated that he is not being inculpated and after signatures on those papers he was released. 11. In absence of evidence of eyewitnesses, the other evidence has been examined as to whether that was enough to convict the accused. The police has primarily placed heavy reliance on Ex.P/21 i.e. seizure of cartridge. Perusal of Ex.P/21 would show that it was seized on 17-6-2016 at about 10.20 pm from the spot. Both the seizure witnesses have not supported such seizure. According to the witnesses when the incident happened it was dark and when the seizure was made it was in the night. Map (Ex.P/8) would show that it is in the bank of pond wherein the pond is surrounded by a wall and towards wall the deceased was standing wherein the gun shot was made. Though according to PW-11 Atit Pandey he heard the sound of crackers more than 5-6 times and according to PW-14 Piyush Shukla he heard the sound of crackers 3-4 times, but no bullet of 7.65 KF was recovered from the spot, except one blank cartridge. If there were more than one gun shot there should have been other blank cartridge should have been recovered. If not done so, it raises a doubt. 12. Dr. S.K. Bagh (PW-6), who conducted the postmortem on the body of the deceased, opined that the cause of death was gun shot injury on abdomen and the mode of death was hemorrhage and shock. Postmortem report is Ex.P/6. From the statement of Doctor it is evident that two bullet injuries were found on the person of the deceased i.e. (i) small circular lacerated wound at left side of 12th rib in the size of 5 cm and the same is stitched; and (ii) exit wound on the left side thorax arterial in the size of 5 cm below from left nipple. No bullet was recovered from the body of the deceased. No bullet was recovered from the body of the deceased. If there were more than 3-4 shots and two bullets were caused the death of the deceased, vide Ex.P/21 only one cartridge was recovered by the police from the spot. When number of bullets were fired and according to map (Ex.P/8) the deceased was standing in front of wall then in such case other bullets should have been recovered from spot. Or at least the wall of pond having the bullet marks should be established along with the bullets. However, only one cartridge was recovered makes it highly improbable that none of the bullets were recovered. (See: State of Punjab v Dalbir Singh, (2012) 3 SCC 346 ). 13. In view of the aforesaid facts, we lay our hands subsequent to other recoveries i.e. recovery of Activa from the parking of Ashoka Millennium Plaza and the pistol vide Ex.P/15. Recovery of Activa was at 2.55 am in the night on 25-6-2016 before that the accused when was apprehended, from him two mobiles and the key of Activa were recovered. This was based on the memorandum Ex.P/14. Dinesh Pandey (PW-16), one of the witness, had not supported the case. 14. Now we are left with other evidence of PW-10 Amit Sharma. His statement would show that at about 11.00 to 12.00 in the night he was summoned by one Constable of DD Nagar. He went to DD Nagar Police Station wherein he was told that murderer of the deceased has been caught and thereafter they went to Phaphadih wherein the accused was interrogated and disclosed the fact, which is recorded in Ex.P/14. On the basis of memorandum (Ex.P/14), recovery of Activa and pistol was made. Cross-examination of this witness would show that nothing was scribed in the crime branch. The witness along with police went to parking of Ashoka Millennium Plaza and no guard was there. In the parking 5-7 cars and 2-3 two wheelers were there and it was admitted at that time any person could have parked their vehicle. According to this witness, they were in the parking place for about 1 to 1½ hour. Certain documents were signed in which it was written that the pistol was taken out from the dicky of Activa. According to this witness, they were in the parking place for about 1 to 1½ hour. Certain documents were signed in which it was written that the pistol was taken out from the dicky of Activa. The witness was confronted with Ex.P/15, the seizure memo, to show that it was not written in the seizure memo that the gun was taken out from the dicky of Activa. According to the prosecution, vide Ex.P/16, two mobiles and one key of Activa were recovered where from the pistol was recovered. At para 24, in respect of memorandums of accused (Ex.P/14) and co-accused (Ex.P/17), it was stated that the same were not signed earlier. 15. PW-19 Jitendra Kumar Tamrakar, Investigating Officer, at para 41 of his deposition, stated that memorandum statement of the accused was written in the crime branch, however, as per PW-10 Amit Sharma, at para 22, stated that the memorandum was written at DD Nagar Police Station. So the place of memorandum also inconsistency comes to fore. When there is inconsistency in the statement, the prconcurring judgment supreme courtesumption of innocence remains in favour of the accused unless his guilt is proven beyond all reasonable doubts against him. (See: Pradeep Kumar v State of Chhattisgarh, (2023) 5 SCC 350 ). 16. Apart from the aforesaid facts, according to the prosecution, the cartridge 7.65 which is said to be recovered vide Ex.P/21 though not proved by the witnesses, vide Ex.P/29 the same was sent to the CFCL, Hyderabad, after purchasing of similar cartridge of 7.65 KF. The report Ex.P/31 would show that the pistol which was recovered from the accused vide Ex.P/15 was the same, but at the same time in absence of evidence that the same bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under Section 302 of the IPC could be recorded. There is no direct evidence of the fact that two bullets, which caused injury were of 7.65 KF. It would almost putting the horse before the cart to connect the accused on the basis of empty cartridge alleged to have been recovered from the spot. 17. There is no direct evidence of the fact that two bullets, which caused injury were of 7.65 KF. It would almost putting the horse before the cart to connect the accused on the basis of empty cartridge alleged to have been recovered from the spot. 17. The Supreme Court in the matter of Jafarudheen and Others v State of Kerala, (2022) 8 SCC 440 has laid down the principles of Section 27 of the Evidence Act wherein it was observed that the section is alleged to be frequently misused by the police, the Courts are required to be vigilant about its application. The Court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. At para 39 the Supreme Court observed thus : 39. Kusal Toppo v. State of Jharkhand as hereunder : (SCC pp. 683-84, paras 25-27) “25. The law under Section 27 of the Evidence Act is well settled now, wherein this Court in Geejaganda Somaiah v. State of Karnataka has observed as under : (SCC p. 324, para 22) ‘22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act.’ 26. The basic premise of Section 27 is to only partially lift the ban against admissibility of inculpatory statements made before the police, if a fact is actually discovered in consequence of the information received from the accused. Such condition would afford some guarantee. We may additionally note that, the courts need to be vigilant while considering such evidence. 27. The basic premise of Section 27 is to only partially lift the ban against admissibility of inculpatory statements made before the police, if a fact is actually discovered in consequence of the information received from the accused. Such condition would afford some guarantee. We may additionally note that, the courts need to be vigilant while considering such evidence. 27. This Court in multiple cases has reiterated the aforesaid principles under Section 27 of the Evidence Act and only utilised Section 27 for limited aspect concerning recovery (refer [Pulukuri Kotayya v. King Emperor; Jaffar Hussain Dastagir v. State of Maharashtra. As an additional safeguard we may note that reliance on certain observations made in certain precedents of this Court without understanding the background of the case may not be sustainable. There is no gainsaying that it is only the ratio which has the precedential value and the same may not be extended to an obiter. As this Court being the final forum for appeal, we need to be cognizant of the fact that this Court generally considers only legal aspects relevant to the facts and circumstances of that case, without elaborately discussing the minute hypertechnicalities and factual intricacies involved in the trial.” 18. The other fact to be gone into is that according to the prosecution, more than 3-4 fire shots were made and, according to the police, when the recovery of empty cartridge was only one that also makes the case highly improbable apart from the fact that when the bullets pierced into body of the deceased who was standing against the wall, the other bullets could have been recovered from the place is blocked wall. In absence of such recovery, recovery of a single empty cartridge from the spot casts doubt and makes the prosecution case doubtful, therefore, the accused/appellant herein cannot be held liable and the benefit of doubt heavily leans in his favour. 19. The factors which have to be taken into consideration by the Court in a case of circumstantial evidence, are too well settled by the Supreme Court in the matter of Dinesh Kumar v. State of Haryana, 2023 SCC OnLine SC 564. At para 36 held thus : 36. 19. The factors which have to be taken into consideration by the Court in a case of circumstantial evidence, are too well settled by the Supreme Court in the matter of Dinesh Kumar v. State of Haryana, 2023 SCC OnLine SC 564. At para 36 held thus : 36. The factors which have to be taken into consideration by the Court in a case of circumstantial evidence, are too well settled to be stated but nevertheless these factors which are being reproduced from Anjan Kumar Sarma (supra) are as under:— (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 20. Applying the well settled principles of law and for the reasons mentioned hereinabove, we are of the view that the guilt of the accused/appellant has not been proved by the prosecution beyond reasonable doubt. Therefore, the trial Court has committed serious illegality while convicting the appellant herein. 21. Accordingly, the conviction and sentence imposed upon the appellant under Section 302 of the IPC and under Sections 4 read with Section 25 (1-b) (b) & 27 (1) of the Arms Act are hereby set aside and he is acquitted of the said charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case, on his furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed. 22. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed. 22. In the result, the instant appeal is allowed.