K.S. Rathore, J.
1. This criminal appeal under Section 374 of the Code of Criminal Procedure has been filed against the judgment and order 21st February, 2006 passed by the learned Additional Sessions Judge (Fast Track) No. 2, Bundi in Sessions Case No. 18/2005 by which he convicted and sentenced the accused appellants as under:
1. Sukhraj Singh,2. Jagjeet Singh, and3. ParmeshwarUnder Section 302 IPC Imprisonment for life and to pay a fine ofRs. 5,000/-, in default of payment of fine offurther undergo two months S.I.Under Section 307/149 IPC Four years S.I. and to pay a fine of Rs. 1,000/-,in default of payment of fine to further undergoone month S.I.Under Section 323/149 IPC To pay a fine of Rs. 100/-, in default of paymentof fine to undergo 15 days S.I.Under Section 147 IPC One month S.I.Under Section 148 IPC Two months S.I.4. Karaj Singh and5. Balijinder SinghUnder Section 302/149 IPC Imprisonment for life and to pay a fine ofRs. 5,000/-, in default of payment of fine tofurther under to two months S.I.Under Section 302/149 IPC Four years S.I. and to pay a fine of Rs. 1,000/-,in default of, payment of fine to further undergoone month S.I.Under Section 323/149 IPC To pay a fine of Rs. 100/-, in default of paymentof fine to undergo 15 days S.I.Under Section 147 IPC One month S.I.Under Section 148 IPC Two months S.I.Under Section 3/25 Arms Act One year S.I. and to pay a fine of Rs. 500/-, indefault of payment of fine to further undergo15 days S.I.Under Section 3/30 Arms Act To pay a fine of Rs. 250/-, in default of paymentof fine to undergo 15 days S.I.
2. Briefly stated the facts for the disposal of the present appeal are that on 17th January, 2005 at about 1.40 a.m. Laxman Singh (PW-1) lodged a written report Ex. P-l before PW-13 Laxmichand, SHO, Police Station Taleda District Bundi with the averments that he was the owner of a 'dhaba' on National High Way No. 12 near village Ballop and on the day of incident in the nigh at about 10-10.15 p.m. while he was sitting in the dhaba, his father PW-2 Inder Singh was in his house situated just in front of the dhaba, some persons were taking meal in the dhaba, at that time one Marshall jeep of white colour bearing No. RJ 08-U-0092 stopped there at the dhaba and from that jeep two persons came out. They were speaking in Punjabi language and they said that they will first take liquor and thereafter will take meal. On this PW-1 Laxman Singh asked them that liquor could not be served in the dhaba. On hearing this, they went near the jeep and 3-4 more persons came out of the jeep and started taking liquor at the dhaba. At that time, PW-3 Pawan Kumar, Dilip. Singh (here-in-after referred to as the deceased), PW-4, Ramdev and PW-5 Munshiram who were also sitting in the dhaba asked the accused not to take liquor but they did not adhere to the request not to consume liquor at dhaba. They became annoyed and started quarreling. On hearing the cry, his father PW-2 Inder Singh came from the house at the dhaba and asked the accused not to take liquor but one of the accused took out his revolver from his pocket and made fire towards PW-2 Inder Singh but PW-2 Inder Singh Caught hold the hands of that person as a result of which it fired in the air. It was also averred in the report Ex. P-l that thereafter that person made second fire which caused injury on the thigh of PW-2 Inder Singh as a result of which Inder Singh fell down and thereafter Dilip Singh rushed towards PW-2 Inder Singh to save him but that person also made fire towards Dilip Singh which struck on his neck as a result of which he-fell down. It was also averred in the report that the accused made two fires and they also gave beating to Laxman Singh and at the time of incident many persons assembled there, as a result of which accused ran away from the place of incident. It was also stated in the report Ex. P-l that thereafter deceased was taken to MBM Hospital, Kota by PW-10 Goverdhan and PW-11 Ramratan and simultaneously information was given to the police by his father Inder Singh PW-2. The deceased succumbed to the injuries on the way and was declared dead by the doctor in the hospital. It was also stated that he was under treatment for some days and subsequently came to know that those persons were the accused appellants. On the basis of above report Ex. P-l, the police registered a case for the offence under Sections 147, 148, 307, 302, 323, 324/149 IPC and chalked out regular FIR Ex. P-2 and started investigation. During the course of investigation, post-mortem report of dead-body of the deceased was got conducted by PW-17 Dr. Mahendra Kumar Singhal and post-mortem report is Ex. P-16. The accused appellants were arrested through arrest memos Ex. P-25 to Ex. P-29. The Marshal jeep was seized through memo Ex.P-17 in the presence of PW-8 Prabhulal and PW-9 Ramesh Chand. The revolver was seized through Ex.P-19. Injured PW-1 Laxman Singh and PW-2 Inder Singh were medically examined and their injury reports are Ex.P-38 and P-39 respectively. After completion of usual investigation, challan was submitted against the accused appellants in the court of Judicial Magistrate, Taleda from where the case was committed to the court of Sessions and thereafter it was transferred to the Court of Additional Sessions Judge (Fast Track) No. 2, Bundi.
3. The learned trial court after hearing both sides framed charges for the offence under Sections 147, 148, 307/149, 302/149, 323/149 IPC against accused appellants Sukhraj Singh, Jagjeet Singh and Parmeshwar and for the offence under Section 147, 148, 307/149, 302/149 and 323/149 IPC and 3/25 and 3/30 of the Arms Act against the accused appellants Kara] Singh and Balijinder Singh. The same were read over and explained to them. The accused appellants denied the charges and claimed trial. In support of its case, the prosecution examined as many as 19 witnesses and got exhibited several documents.
4. In the statement of the accused recorder under Section 313 Cr.P.C., they stated that they have falsely been implicated in the case. No evidence in defence was adduced.
5. After conclusion of trial, the learned Additional Sessions Judge (Fast Track) No. 2, Bundi and after hearing both sides vide its judgment and order dated 21st February, 2006 convicted and sentenced the accused appellants in the manner indicated above holding that the prosecution has proved its case against the accused appellants Sukhraj Singh, Jagjeet Singh and Parmeshwar for the offence under Sections, 147, 148, 307/149, 302/149 and 323/149 IPC and 3/25 and 3/30 of the Arms Act. Being aggrieved from the aforesaid judgment and order dated 21.2.2006 passed by the learned Additional Sessions Judge (Fast Track) No. 2, Bundi, the accused-appellants have preferred this appeal.
6. We have heard learned Counsel for the appellant as well as the learned public prosecutor for the State and carefully examined the material available on record.
7. In the instant case, the points for determination are; (i) whether the prosecution has been able to prove its case beyond reasonable doubt against the accused-appellants; (ii) whether the evidence in this case is sufficient to hold the accused appellants guilty for committing murder of Dilip Singh; and (iii) whether the finding recorded by the trial Court against the guilt of the accused appellants is required to be maintained or the accused appellants are liable to be acquitted.
8. Now we propose to examine the points framed by us.
Points. No. (i) & (ii):
Since points No. (i) and (ii) framed by us above are inter-related, as such they are being decided together.
9. It is to be seen that in the instant case on lodging FIR, the police after completion filed charge sheet against the accused-appellants. It is not in dispute that deceased Dilip Singh died unnatural death as a result of gun shot injury. This fact found proved by the post-mortem report Ex. P-16 which has been proved by the witness PW-7 Dr. Mahendra Kumar Singhal. Now, it is to be seen as to whether the evidence of eye witnesses of the case and other evidence brought on record is sufficient to hold the accused-appellants guilty for the offence alleged to have been committed by them. In all prosecution has produced as many as 19 witnesses. In their statement recorded under Section 313 Cr.P.C., the accused appellants have denied their involvement in the case. PW-1 Laxman Singh and PW-2 Inder Singh appears to be the eye witnesses in the case as per report Ex.P-1 but then whether their testimony is worth reliance is the question to be determined. Both the witnesses have not supported the prosecution case. PW-1 Laxman Singh and PW-2 Inder Singh though have stated in their examination-in-chief that the incident as alleged in the FIR took place but as regards the role played by the accused they did not support the prosecution case. Both the witnesses have been declared hostile. The other evidence in this regard is of PW-3 Pawan Kumar who has also been named in the FIR but as regards accused appellants are concerned nothing has been stated by him. Similar is the position of the witnesses PW-4 Ramdev and PW-5 Munshiram. The above witnesses have also turned hostile. The other independent witness PW-6 Ramdev and PW-5 Munshira. The above witnesses have also turned hostile. The other independent witnesses PW-6 Ajay Singh and PW-10 Gordhan have also not supported the prosecution case and they have also been declared hostile. It is correct that even if the witnesses have turned hostile then also from their statement it can be ascertained that on material part they could be relied upon and that part of their evidence can be taken into consideration for proving guilt of the accused-appellants. In the instant case, as regards accused-appellants are concerned, they committed the offence and opened fire as a result of which Dilip Singh died is a question which was for consideration before the trial Court and for that aspect of the matter as the witness who has lodged the FIR has also not supported the contents of the FIR. In the above circumstances, simply findings that in an incident one person has died then in our considered opinion that will not be a proper appreciation of evidence. Thus, it appears that all material witnesses including the eye witnesses and injured have turned hostile, therefore, the finding of the trial Court that on the basis of evidence led in the case it was established that the accused was guilty for committing various offences, can not be said to be correct appreciation of evidence. In Para 39 of the impugned judgment, the learned trial Court has quoted several arguments raised by the counsel for the appellants but it does not appear that the arguments raised have been considered by the trial Court. It also appears that the learned trial Court in casual manner finding that the Revolver was recovered from the back side of the jeep and since the police witnesses have said that it was recovered so, the trial Court found the evidence sufficient for the purpose of recovery though the witnesses of recovery have also not supported the prosecution case.
10. It appears that the recovery has been made from the seat of jeep. PW-8 Prabhulal who is a witness of recovery and seizure of jeep has stated that the revolver was recovered by PW-13 Laxmichand from the backseat of the vehicle. Similar statement has been made by PW-9 Rameshchand. It is also significant to note that the manner in which recovery has been made as stated here-in-above also does not connect the accused with the commission of crime in the absence of evidence of the eye witnesses and other witnesses. It is also certain position of law that when the evidence of eye witnesses and injured in the case is not supporting the prosecution version then merely on the basis of recovery, as in the present case is of revolver, is not sufficient to connect the accused with commission of crime. The learned trial Court in Para 43 of the impugned judgment has recorded its conclusion that the deceased got gun shot injury and PW-2 Inder Singh also got gun shot injury and incident took place at the dhaba and since recovery of revolver was made, therefore, it was sufficient to hold the accused guilty. The question here is that the person who received injury must state that who caused injury to him and accused-appellant were the persons who opened fire as a result of which the deceased died and injuries were sustained by the injured. This part of evidence is missing in this case. Even in the cross-examination when the question was put to the above witnesses whether the appellants were responsible for the injuries sustained by the deceased and the injured, the witnesses could not say that the deceased was shot dead by the appellants. It also does not reflect from the impugned judgment that what was the act played by each of the accused in the case. It has also been discussed that in view of the contents of FIR and in view of recovery made of the revolver and since one person has died in the incident and also the injuries on the person of the injured were stated before the court, therefore, the material collected was sufficient to hold the accused-appellants guilty. We are of the opinion that there must be reliable evidence to connect the accused with he crime which may inspire confidence. The evidence has not been discussed in detail but it is suffice to say that the evidence is not worth of credence as the eye witnesses as well other material witnesses have not supported the prosecution case. We are of the opinion, that the finding of guilt recorded against the accused-appellants is not tenable in the eye of law.
11. In view of the fore-going discussion, the answer to the points No. (i) and (ii) is that the prosecution has failed to prove guilt against the accused-appellants and the evidence produced by the prosecution is not sufficient to hold the accused appellants guilty for the murder of Dilip Singh.
Point No. (iii):
12. In view of the answer to points No. (i) and (ii) above, we are of the opinion that the finding of guilt recorded by the trial court are not liable to be sustained and the accused are liable to be acquitted of the charges framed against them.
13. In the result; the appeal succeeds. The judgment of conviction and order of sentence dated 21st February, 2006 is hereby set aside. The accused appellants are acquitted of the charge framed against them. The accused-appellants Karaj Singh, Balijinder Singh, Sukhraj Singh and Jagjeet Singh are on bail. They need not surrender their bail bonds. The accused appellant Parmeshwar is undergoing sentence in District Jail, Bundi. He be released forthwith if not required in any other case.