Raj Kumar vs State of Haryana

Harphul Singh Brar, J.—Raju alias Raj Kumar was charged under Sections 302, 307/34, I.P.C, and u/s 27 of the Arms Act, Har Chand was charged u/s 302 read with Section 34, Section 307 read with Section 34, I.P.C, and Ram Chander was charged under Sections 307, 302/34, I.P.C, and u/s 27 of the Arms Act.

The learned Sessions Judge, Faridabad vide his judgment dated 31-10-1994, convicted Raju alias Raj Kumar accused u/s 302, I.P.C, and u/s 27 of the Arms Act, 1959 and he was sentenced to undergo imprisonment for life and to pay a fine of Rs. 400/- or in default of payment of fine, to undergo further rigorous imprisonment for one year, vide order dated 7-11-1994 of the learned Sessions Judge, Faridabad. He was sentenced to rigorous imprisonment for two years and to pay a fine of Rs. 100/ - u/s 27 of the Arms Act. In default of payment of fine, he was directed to undergo further rigorous imprisonment for three months. Both the sentences were ordered to run concurrently.

The learned Sessions Judge, Faridabad, however, acquitted Ram Chander and Har Chand of all the charges against them.

Raju alias Raj Kumar has challenged his conviction and sentence awarded to him by the learned Sessions Judge in this appeal. On the other hand, the State has filed an appeal against the acquittal of Ram Chander and Har Chand which is also before us for hearing. We would thus, dispose of both these appeals, i.e. Cr. Appeal No. 13-DB of 1995 and Cr. Appeal No. 407-DBA of 1995 together as they arise out of the common judgment of the learned Sessions Judge, Faridabad.

Bhajan Lal P.W. 5, who lodged the F.I.R. Ex. PI, stated that he had a ration shop in Ward No. 8 at Hathin. On 24-10-1991, he and Ram Chander had contested the Municipal Election held in Hathin. The election was conducted peacefully. Ram Chander had won whereas he had lost the election. Ram Chander had a single barrel licenced gun. Ram Chander, after his success in the election, used to say that he will see each one of them after he would be elected as Chairman. On 6-11-1994, at about 4-00 p.m., the pet dog of Ram Chander entered the house of Mohan Lal and ate up the meat lying therein. At that, Daya Ram son of Mohan Lal gave a lathi blow to the pet dog. The dog ran away towards the house of Ram Chander. Ram Chander came to the house of Mohan Lal and protested about the treatment meted out to his dog. In his presence, Mohan Lal apologized to Ram Chander. At about 6 p.m., Raju son of Ram Chander came to his house and all of a sudden, started hurling abuses to Om Parkash. He also brought out the gun of his father and fired a shot at Om Parkash son of Mohan Lal who was standing in the courtyard of his house which hit him. Om Parkash fell down. On hearing the report of fire, his father Puran came out from the Baithak which is situated in front of the Baithak of Ram Chander. Ram Chander took the gun from his son saying that he would see Puran. Then Ram Chander fired a shot at his father and Har Chand son of Phool Singh threw the brick-bats at his father at the spot. He saw all the occurrence from his Baithak. He raised an alarm saying, "Mar diya, Mar diya" (killed, killed). In the meanwhile, Ram Chander fired another 2/3 shots. He, Itbari son of Nakta and Girraj son of Tulli had witnessed the entire occurrence. The houses of Itbari and Girraj are situated nearby. On hearing the report of fire, many people had assembled there. All the three accused fled away towards their houses. Many persons from the ward took Om Parkash and his father to the hospital. The cause of grudge was that he had contested the municipal committee elections against Ram Chander. His statement was recorded by Ram Krishan, S.I./S.H.O.. P. S. Hathin and he after hearing the statement, had signed it in token of its correctness.

During the investigation, Sub-Inspector Ram Kishan P.W. 10 had lifted blood-smeared earth from the place of occurrence and also seized two fired cartridge-cases Ex. P. 13 and Ex. P. 14. After conducting inquest proceedings, the dead body of Om Parkash was sent for post-mortem examination.

During the autopsy conducted by Dr. B. S. Sharma (P.W. 1) of General Hospital on 7-11-1992 at 9.30 a.m., he had recorded the following injuries on the person of Om Parkash :-

Multiple pellet marks about 60 to 100 in number, 1/4"x 1/4" Reddish in colour associated with slightly blackish in colour in the entry of pellet. Pellet was over the front of the whole chest, both anterior aspect of shoulder, whole face and whole skull (except occipital area). Some pellets were lodged in the body superficially and skin deep. Some were muscle deep in the front of chest and middle of fore-head and left eye wall.

(2) Reddish diffused swelling 3 1/2" x 2" over the left eye wall.

On internal examination and on dissection, pellet on the middle of fore-head was collected in the frontal bone of fore-head and frontal bone was found fractured and some pellets were also collected in the left orbital fossa and left cerebral hemisphere of brain.

Pellets were also removed from the right and left shoulder joints of muscles, and right and left lung and also heart and liver and also from the frontal bone of skull and brain.

At the entry of wound of pellet in lungs, in heart, the surrounding area of wounds so affected by the entry of the pellets was of the size of 1.5 cm. x 1.5 cm. and was blackish in colour.

The cause of death was opined to be shock and haemorrhage as a result of fire-arm injuries which were ante-mortem and sufficient to prove fatal in ordinary course of nature and the time that elapsed between injuries and death was within a few minutes and between death and post-mortem was within. 18 hours.

The injured Puran was medico-legally examined by Dr. Sharma on 6-11-1991 at about 7.15 p.m. and he had noticed the following injury on his person: -

Lacerated wound 1/2" x 1/2" just over the right eyebrow of fore-head. It was muscle deep and fresh bleeding was present. (X-Ray of skull was advised).

The accused persons were motivated to commit the crime against Puran because Ram Chander had successfully contested the municipal election against his son Bhajan Lal in the month of October, 1991 and thereafter Ram Chander who was a gun licensee, had been openly proclaiming that he would teach a lesson to his opponents after he managed to become the Chairman.

All the three accused were arrested in this case by S. I. Ram Kishan on 10-12-199.1. The licenced gun Ex. P. 15 of Ram Chander accused was taken into possession by the police on 11-11-1991. The gun Ex. P. 15 and empties Ex. P. 13 and Ex. P. 14 which were recovered from the spot were sent for analysis to the Forensic Science Laboratory, Madhu-ban. As per report Ex. PK received therefrom, the gun Ex. P. 15 was in working order whereas the cartridge-cases Ex. P. 13 and Ex. P. 14 lifted from the place were held to have been fired from the gun Ex. P. 15. The mutilated pellets taken out of the dead-body and lifted from the place of occurrence were also examined and were reported by the Assistant Director, Ballistics to be the part of crime cartridges Ex. P. 13 and Ex. P. 14.

To prove their case, prosecution produced P.W. 1 Dr. B. S. Sharma of General Hospital. Dr. Sharma conducted the autopsy on the dead body and proved his report Ex. PB containing the results of examination, prepared by him and he further deposed that he had medico-legally examined Puran son of Mohan Lal on 6-11-1991 at 7.15 p.m. and found lacerated wound 1/2" x 1/2" over the right eye-brow of fore-head, as mentioned in his report Ex. PC.

P.W. 2 Jai Singh, Photographer of Hathin deposed that he took snaps Ex. P9 to Ex. P..12 of the place of occurrence at Hathin on the asking of the police, on 6-11-1991.

P.W. 3 Ved Parkash Draftsman of Palwal proved the plan Ex. PF of the place of occurrence drafted by him on 14-11-1991 and delineated therein the various places pointed out to him by Bhajan Lal and Itbari witnesses.

Sub-Inspector Gordhan Singh, the then S.H.O., Police Station Hathin, P.W. 4 deposed that he partly investigated the case and recorded the statements of formal witnesses and present final report u/s 173, Cr.P.C.

P.W. 5 Bhajan Lal son of Puran, the alleged eye-witness of the occurrence, gave detailed account of the prosecution version regarding the manner, in which the accused persons had armed themselves and then Om Parkash was fatally wounded by Raju whereas three shots were fired at him (Bhajan Lal) and at Puran, the father of Bhajan Lal and the stones pelted at him by Harchand accused had hit his fore-head. He further proved the report Ex. PF forming basis of the First Information Report filed by him with the police.

P.W. 6 Puran too named Raju was having fired at Om Parkash and also the shots fired at him by Ram Chander which, however, did not hit him.

P.W. 7 Mohammad Ashraf, License-Clerk, S. D. M. Office, Palwal deposed at the trial that Ram Chander held a valid licence for the possession of the gun allegedly used for the commission of crime.

P.W. 8 Girraj asserted at the trial that within his presence and view, Raju accused had fired the fatal shot at Om Parkash and that Ram Chander had fired shots at Puran which, however, did not hit him and that Har Chand accused had pelted stones at Puran, which did hit him on his fore-head.

P.W. 9 Mohan Lal, father of Om Parkash deceased deposed that the pet dog of Ram Chander had gone astray into his house and thereupon his other son Daya Ram had hit animal with a stick and later on, Ram Chander accused had visited his house and hurled abuses.

S.I. Ram Kishan, P.W. 10 has deposed at the trial that he recorded the F.I.R. from the statement of Bhajan Lal Ex. PF on 6-11-1991. He lifted the blood smeared earth from the place of occurrence; seized the empty cartridges Ex. P. 13 and Ex. P. 14 and the licenced gun of Ram Chander Ex. P. 15 on 11-11-1991.

The prosecution also tendered on record the affidavits of formal witnesses on the point of link evidence, report Ex. PK of Assistant Director Ballistics and reports Ex. PK/1 and Ex. PK/2 of the Assistant Chemical Examiner collected during the investigation. Itbari, the alleged eye witness of the occurrence was not examined on the plea of having been won over by the accused.

After the close of the evidence of the prosecution the accused were examined u/s 313, Cr.P.C. wherein they denied the allegations against them and pleaded innocence. It has been asserted that Raju accused was, in those days, studying in B. A. Final in a college at Palwal whereas Ram Chander and Har Chand were retired army personnel.

The accused have examined Head Constable Raj at Ram D.W. 1 who asserted that in the two cases registered at Police Station, Hathin on 13-11-1990 and other case registered on 7-1-1991 and 20-4-1991 under the provisions of Cow Slaughter Act and another cases registered u/s 25 of the Arms Act on 27-11-1990, Bhajan Lal son of Puran resident of Hathin was cited as a witness for the prosecution. The accused also tendered on record the certificates Ex. Dl to Ex. D3 respecting Raju accused and two discharge certificates, Ex. D4 respecting Ram Chander and Ex. D3 of Har Chand.

Learned counsel for the appellant submits that medical evidence contradicts the oral evidence of the alleged eye-witnesses. Learned counsel submits that the nature and the extent of the injuries and its spread all over the face, shoulders and the chest of the deceased indicates that it cannot be the cause of one gun shot fire. He further submits that the injuries found on the person of the deceased are of more than two types; (i) superficial, (ii) skin-deep, (iii) muscle deep, (iv) frontal bone of head completely fractured, and (v) lungs were pierced and pellets were found therein.

Let us now examine this aspect of the matter. Dr. B. Sharma, Medical Officer, General Hospital, Palwal, P.W. 1 who conducted the post-mortem examination on the dead-body of Om Parkash on 7-11-1991 at 9.30 a.m., detected the following injuries on the dead body:-

(1) Multiple pellet marks about 60 to 100 in number, 1/4" x 1/4". Reddish in colour associated with slightly blackish in colour in the entry of pellet. Pellet was over the front of the whole chest, both anterior aspect of shoulder, whole face and whole skull (except occipital area. Some pellets were lodged in the body superficially and skin deep. Some were muscle deep in the front of chest and middle of fore-head and left eye wall.

(2) Reddish diffused swelling 3 1/2" x 2" over the left eye wall.

On internal examination and on dissection pellet on the middle of fore-head was collected in the frontal bone of fore-head and frontal bone was found fractured and some pellets were also collected in the left orbital fossa and left cerebral hemisphere of brain.

Pellets were also removed by the doctor from the right and left shoulder joint of muscles, and right and left lung and also heart and liver and also from the frontal bone of skull and brain.

At the entry of wound of pellet in lungs, in heart, the surrounding area of wounds so effected by the entry of the pellets was of the size of 1.5 cm. x 1.5 cm. and was blackish in colour.

There were reddish, blackish lacerated wounds of 1/8" x 1/8" in both the lungs in their apex, middle part. The lungs were collapsed. Fresh blood was present and the pellets were removed from the lungs also.

HEART:

Heart was healthy and empty. It had 1/4" x 1/4" pellet marked wound which was through and through the ventricle part in its middle. Some pellets were removed.

Stomach was empty and healthy.

Small and large intestines were pale and healthy.

All other organs were normal and healthy.

The cause of death in this case was due to shock and haemorrhage as a result of firearm injuries and all the injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The time that elapsed between injuries and death was within few minutes while between death and post-mortem was 18 hours.

The doctor has deposed at the trial in his examination-in-chief that he could hot say if the injuries on the person of the deceased were the result of a shot fired from a 12 bore gun or otherwise, as he did not have the knowledge in that science. When cross-examined, he stated that since there was blackening of the wound described in injury No. 1 of the deceased, the minimum distance between him and the assailant would be within 3 ft. and maximum 6 ft. He further stated that the dispersion of the pellets was not mentioned by him area-wise although the parts effected by pellets had been duly described by him in the post-mortem report and shown in the diagram. The blackening of the wound was noticed by him even inside the wound and the lungs portion which, according to him, indicated that the firing was from a close range. If this opinion of the doctor is taken as correct, then there is no difficulty in reaching the conclusion that injury No. 1 on the person of the deceased was the result of more than one gun-shot in view of the fact that the spread over of pellet on the body over such a large area and most of the pellets being lodged in the body superficially, skin deep or in a muscle deep position and some of the pellets had caused fracture of the fore-head and had further caused injuries of different sizes to the different parts of the body.

However, the learned counsel for the State submits that the opinion of the doctor is not correct, in so far as he has stated that the distance between the deceased and the assailant would be within 3 ft. and maximum 6 ft. as there was blackening of the wound described in injury No. 1 of the deceased. He submits that the doctor perhaps took black ring around the pellet entry as blackening. If the opinion of the doctor was correct, according to the learned counsel, then tattoring and scorching should also have been present on the injury which is absent in this case. There is some force in this argument of the learned State counsel also that if fired from a close range, presence of tattooing or scorching is inevitable and there should have been an evidence of enmass entry of pellets also. It is not evident from the injuries on the deceased that pellets entered enmass in the body in the group of 5 to 10. The simple blackening of the injury sometimes can be due to the ecocymosis due to bleeding under the skin. In any case, these type of injuries on the person of the deceased can, in no case, be believed to have been caused by a single shot fired from a 12 bore single barrel gun from a distance of 40 to 42 ft. That distance has been made available to us by P.W. 5 Bhajan Lal and P.W. 3 Ved Parkash.

It has come in the evidence of P.W. 5 Bhajan Lal that Raju had fired at Om Parkash deceased while standing at the place of Chontra (raised platform of his house) and Raju was at that time, at a distance of about 40 ft. from Om Parkash. In the scaled plan Ex. PF prepared by P.W. 3 Ved Parkash on the pointing out of Bhajan Lal P.W. 5, the distance from where Raju had fired at the victim, is shown as 42 ft. Spread of pellets from a single shot from a 12 bore single barrel gun affecting such a large area, i.e. whole of the face, whole skull (except occipital area) both anterior aspect of the shoulder and over the front of the whole chest and then some pellets being satisfied (sic) with their safe lodging in the body superficially skin deep and muscle deep position on the whole of the area of the body as described above, and the other pellets entering the fore-head by fracturing the frontal bone and going further deep into the left orbital fossa and the left cerebral hemisphere of the brain and further causing wounds of different sizes in the body. For instance, entry wound of pellet in lungs; in the heart, was of the size of 1.5 cm. x 1.5 cm.

Lacerated wound of 1/8" x 1/8" in both the lungs in their apex, middle part.

Then it was found 1 / 4" x 1 / 4" pellet marked wound which was through and through the ventricle part in its middle.

In any case, it is unbelievable that the abovesaid injuries on the body of the deceased could be caused by a single barrel 12 bore gun either from a distance of 3 to 6 ft. or from a distance of 40 or 42 ft.

It has come in the evidence of Sub-Inspector Ram Kishan P.W. 10 that he took into possession two fired cartridge-cases lying at the spot. This piece of evidence further corroborates the fact that injuries inflicted on the dead body were the result of more than one gun shot, particularly so when no gun shot injury was found on the person of Puran son of Mona, though his presence at the time of occurrence is also doubtful. The learned Sessions Judge has practically not touched this aspect of the matter as to whether injuries on the person of the deceased could be the result of one shot or two shots from a 12 bore single barrel gun. He was satisfied in merely observing that some marginal error on the point of range of fire could not be allowed to cast any suspicion on the prosecution case which, according to him, stood proved from the direct evidence. He has, in our view, erred in holding that some marginal error on the point of range of fire could not be allowed to cast any cloud of suspicion on the prosecution case.

From the evidence discussed above, we are, thus, of the considered opinion that the injuries on the person of the deceased were the result of more than one gun-shot.

It is well settled by long series of decisions of the apex Court that where the direct evidence is not supported by the expert evidence, then evidence is wanting in the most material part of the prosecution case. Therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the madical evidence, this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained, it is sufficient not only to discredit the evidence but the entire case.

In the present case, as noticed above, the evidence of the alleged eye-witnesses is wholly inconsistent with the medical evidence and, therefore, it is difficult to accept them as eye-witnesses to the occurrence and, therefore, it would not be safe to base the conviction on the evidence of such witnesses.

There are some other circumstances noted below which also falsify the prosecution story:-

Bhajan Lal P. W. 5 has admitted in his cross-examination at the trial that all the three accused persons Raj Kumar, Ram Chander and Har Chand (the latter two stand acquitted by the learned Sessions Judge) were arrested by the police on the day of occurrence at the place of occurrence itself. Even Puran P.W. 6 has deposed in his cross-examination that he could not say as to who had witnessed the occurrence. This glaring admission about the arrest of the accused at the place of occurrence and the statement of Puran that he could not say as to who had witnessed the occurrence, falsifies the presence of the alleged eye-witnesses at the time of occurrence. This also falsifies the statement of Investigating Officer (S. I. Ram Kishan P.W. 10) saying that he had arrested all the three accused on 10-11-1991. The learned Sessions Judge merely ignored this evidence by observing that some casual assertion made by P.W. 5 Bhajan Lal on the point of arrest of the accused has to be overlooked.

There is no motive on part of the accused to kill the deceased Om Parkash. The motive described by Bhajan Lal P.W. 5 in his statement is that on 6-11-1991, at about 4 p.m., the pet dog of Ram Chander accused had entered the house of Mohan Lal, father of deceased Om Parkash on getting the smell of meat and the dog ate up the meat. On this, Daya Ram, brother of the deceased took offence and gave a lathi blow to the pet dog of Ram Chander accused. The dog ran away from there, Ram Chander came to the house of Mohan Lal and protested about the treatment meted out to his dog. On this Mohan Lal apologised to Ram Chander and the matter ended there. Even the assertion of the motive made at the trial by the witnesses was not proved on the record. Daya Ram, brother of the deceased who is alleged to have seen the alleged incident regarding motive has not been produced by the prosecution for the reasons best known to them. However, the enmity of the alleged witnesses Bhajan Lal P.W. 5 and his father Puran has come on the record.

Bhajan Lal has deposed in his examination-in-chief at the trial that Ram Chander had contested the Municipal Election in Hathin in the month of October, 1991. He (Bhajan Lal) had also contested the election. Ram Chander accused was declared successful while Bhajan Lal had lost that election. He further stated that after his success, Ram Chander used to go around the Ward and was heard saying that he would see everyone and would become the Chairman. Thus, there was every possibility of Bhajan Lal, his father Puran and the other alleged eye-witnesses Girraj, who happens to be their collateral, in becoming the alleged eye-witnesses to the occurrence against Ram Chander and his son Raj Kumar and Har Chand, brother of Ram Chander. Bhajan Lal has deposed at the trial that he saw the occurrence from his ration shop where he was standing outside. The evidence of the location and the distance from the ration shop has not been provided by the prosecution. His father who is an alleged eye-witness, has admitted in his cross-examination that he could not say as to who had witnessed the occurrence and Puran is quite definite in his stand at the trial that Ram Chander accused had fired only one shot at him whereas Bhajan Lal P.W. 5, his son is firm in stating at the trial that Ram Chander accused fired 3 shots at his father Puran. How Bhajan Lal has described the manner of firing at Puran, needs mention here:-

"On seeing my father, Ram Chander accused told Raju to give him the gun and that he would see to Puran. Then Ram Chander fired a shot at Puran after taking the gun from Raju. The shot missed its aim. Mar Chand accused started pelting the stories at my father, which hit him on the fore-head. Then Ram Chander accused fired another shot at my father Puran followed by a third shot. Both of the strucks missed their aim."

Another alleged eye-witness Girraj P. W. 6 has deposed at the trial regarding the firing of gun shot by the accused on the deceased'' Om Parkash and Puran, the relevant portion of which reads as under.:--

"Raju accused had, thereafter, fired a shot with gun at Om Parkash. Itbari son of Nakta was also present there. The shot fired by Raj accused had hit Om Parkash on the right side of face. Om Parkash then fell down. Puran, father of Bhajan Lal, also came there. Thereafter, Ram Chander accused took away that gun from his son Raju and fired a shot at Puran."

He further stated in his examination-in-chief at the trial that Ram Chander accused had fired 2-3 shots at Bhajan Lal. This is not even the prosecution story and no witness. has stated that Bhajan Lal was also fired at by the accused.

The evidence of even these three witnesses Bhajan Lal, his father Puran and their collateral Girraj is contradictory to each other. Girraj has specifically stated that Ram Chander had fired 2-3 shots at Bhajan Lal also, which is not even the prosecution story and it has not been so stated by Bhajan Lal and Puran, P.W.s.

The medical evidence belies the presence of Girraj at the spot, as he is factually wrong in saying that shot fired at Raju had hit Om Parkash on the right side of the face. Girraj had not even stated before-the police about the presence of Bhajan Lal at the time of occurrence. He had made this improvement only at the time of trial.

The improvements made by Bhajan Lal P.W. 5 at the trial are visible from the following lines of his cross-examination which are reproduced as under:- "I had stated before the police that at the time of occurrence, I was present at my ration depot shop. (Attention of the witness is invited to statement Ex. PL, where it is not so recorded).

In the report filed with police, had mentioned that shots fired by Ram Chander accused had not hit any person. (Attention of the witness invited to statement Ex; PL, where it is not so recorded)...I had stated before the police that my father was hit on the fore-head as a result of pelting of stones by Har Chand accused. (Attention of the witnesses is invited to statement Ex: PL, where there is no mention regarding seat of injuries."

It is admitted by Sub-Inspector Ram Kishan P.W. 10 that he did not mention the name of the eye-witnesses in the Daily Diary Report recorded by him on 6-11-1991 at 6-30 p.m. The non-mentioning of the names of the eye-witnesses in the Daily Diary Report assumes importance in the circumstances of this case. It shows that the F.I.R. was not recorded at the time at which it purports to have been written. The possibility of introducing the names of the alleged eye-witnesses cannot be ruled out at the instance of Bhajan Lal who is proved to be inimical to the accused and who seems to be quite familiar with the police being an easily available prosecution witness. It has come on record that on 13-11-1990, two cases under the provisions of Cow Slaughter Act were registered at Police Station Hathin vide F.I.R. Nos. 195 and 196. Bhajan Lal P.W. 5 was a witness for the prosecution in both these cases. Then a case u/s 25 of the Arms Act was registered at Police Station, Hathin on 27-11-1990 vide F.I.R. No. 203 in which Bhajan Lal was cited as a witness for the prosecution. Then again, more cases were registered at Police Station, Hathin; on 7-1-1991 vide F.I.R. No. 9 and on 20-4-1991 vide F.I.R. No. 35 wherein the Bhajan Lal aforesaid was cited as a prosecution witness.

The alleged arrest by the Investigating Officer of the accused on 10-11-1991 and the seizure of the gun from Ram Chander accused on 11-11-1991 and the report of analysis Ex. PK of the Assistant Director, Ballistics showing that the cartridge-cases Ex. P. 13 and Ex. P. 14 lifted from the venue of crime had been fired from the licenced gun Ex, P. 15 of Ram Chander, is of no consequence when it has come in the evidence of P.W. 5 Bhajan Lal that the accused were arrested at the spot on the day of occurrence itself. Then it is very interesting to note that Daya Ram, brother of the deceased, witness of alleged recoveries. and the witness of motive has not been produced by the prosecution.

In view of foregoing discussion, there is no cogent evidence to support the prosecution case. Consequently, the conviction of the appellant deserves to be set aside.

In the result, the appeal succeeds and is hereby allowed. The conviction of the appellant Raj Kumar u/s 302 of the Indian Penal Code and u/s 27 of the Arms Act, 1959 with sentences thereunder is set aside and he is acquitted of all the charges framed against him.