On 22.6.2002 at about 6:15 pm, owning to the said dispute, accused Rituraj Singh shot fire on the person of deceased Jagannath as a result of which he died.The first information report of the incident was lodged by Santosh (PW.1) vide Exhibit P/1 on 22.6.2002 at 6:30 pm specifying the name and act of accused Rituraj Singh but thereafter during the statement, it is said that accused Rituraj Singh was driving a motorcycle and Guddu alias Hira Singh was sitting as a pillion rider alongwith a Gun and at the time of incident, Rituraj Singh took the Gun from Guddu alias Hira Singh and shot fire over the person of deceased Jagannath.After lodging the first information report, the police investigation commenced.The autopsy was conducted by Dr.14.12.2017 This appeal under Section 374(2) of the Code of Criminal Procedure (hereinafter shall be referred to as ''Cr.P.C'') has been filed being aggrieved by the judgment of conviction and the sentence dated 14.11.2006 passed by the Special Judge-cum-Additional Sessions Judge, Damoh in Special Case No.98/2002 convicting appellant No.1 Rituraj Singh for the charge of Section 302 of the Indian Penal Code (hereinafter shall be referred to as ''I.P.C'') and convicting appellant 2 No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- each for respective offences and in default to undergo imprisonment for one month each and also convicting the appellant No.1 Rituraj Singh for the charge of Section 27 of the Arms Act and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- and in default to undergo imprisonment for one month and convicting appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act and sentencing him to pay a fine of Rs.2000/- and in default to undergo simple imprisonment for two months.As alleged, about eight days prior to the date of incident, heated exchange took place between accused Rituraj Singh and deceased Jagannath on account of sowing the water chestnut (Singadha) in the Government Tank known as Luharband.It is said that the field of accused Ompal Singh was adjacent to the said Tank and on account of sowing the water chestnut (Singadha), the dispute arose between accused Rituraj Singh and deceased Jagannath.R.K.Bhardwaj (PW.35) vide Exhibit P/32 and as per the opinion of the 3 doctor, the cause of death was due to hemorrhage as a result of receiving the gun shot injuries to deceased Jagannath.The license of 12 bore gun issued in the name of Ompal Singh has also been seized by the Police.After completion of the investigation, the Challan was filed in the Court of Judicial Magistrate First Class but as the case was triable by the Court of Sessions, therefore, it was committed to the Court of Sessions where the charges of Section 302 of the I.P.C, Sections 25/27 of the Arms Act and Section 3(2)(v) of the SC/ST Act were framed against appellant No.1 Rituraj Singh.The charges of Section 302/34 of the I.P.C and Section 3(2)(v) of the SC/ST Act were framed against appellant No.2 Guddu alias Hira Singh whereas charge of Section 30 of the Arms Act was framed against appellant No.3 Ompal Singh.The accused persons have abjured their guilt and taken a defence of false implication on account of the previous enmity.The Trial Court relying upon the testimony of the prosecution witnesses and corroborating the same with the medical evidence convicted appellant No.1 Rituraj singh for the charge of Section 302 of the I.P.C and Section 27 of the Arms Act and convicted the appellant No.2 Guddu alias Hira Singh for the charge of Section of 302/34 of the I.P.C and the appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act and directed them to undergo the sentence as hereinabove described.However, for the charges of Section 25 of the Arms Act and Section 3(2)(v) of the SC/ST Act, the accused persons were acquitted by the Trial Court.Learned counsel representing the appellants has strenuously urged that the conviction of appellant Nos.1 and 2, namely, Rituraj Singh and Guddu alias Hira Singh is solely based on the testimony of eye-witness Santosh (PW.1) although his testimony is of ocular nature, which cannot be relied upon to convict the appellants particularly when he is the brother of deceased Jagannath and is an interested witness.In addition to the aforesaid, it is also urged that if the contents of the first information report are compared with the other evidence then it is apparent that the prosecution has not proved its case beyond reasonable doubt to prove the charge of Section 302 of the I.P.C against the appellant No.1 Rituraj Singh.It is contended by learned counsel for the appellants that against appellant No.2 Guddu alias Hira Singh, it is said that his name has not been mentioned in the first information report and the story as narrated that he came alongwith accused Rituraj Singh on a motorcycle does not find support from the first information report as well as the other evidence, however, to prove the common intention of accused Guddu alias Hira Singh and to commit the murder of deceased Jagannath has also not been established by the prosecution beyond reasonable doubt, therefore, the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C is not based on due appreciation of evidence brought on record by the prosecution.Insofar as the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act is concerned, it is contended by learned counsel for the appellants that looking to the seizure memo (Exhibit P/16) two guns were seized; one is double barrel muzzle loading riffle and another is 12 bore gun bearing No.180/80; and the license of 12 bore gun bearing No.180/80 in the name of Ompal Singh was seized but the prosecution has not brought any evidence that the 12 bore 5 licensed gun of Ompal Singh was used in commission of the offence.It is also contended that the prosecution has only sent the double barrel muzzle loading riffle for examination to the Ballistic Expert and that the 12 bore gun, which was found in use for commission of the offence, however, nothing is available on record that the 12 bore licensed gun, which was in the name of accused Ompal Singh has been used by appellant No.1 Rituraj Singh in commission of the offence, therefore, appellant No.3 Ompal Singh may not be held guilty for the charge of Section 30 of the Arms Act. In view of the said submission, it is urged that the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act is unsustainable in law.On the other hand, learned Government Advocate representing the respondent/State has contended that looking to the prosecution narration from the stage of the first information report, the involvement of appellant No.1 Rituraj Singh in commission of murder of deceased Jagannath has been proved beyond reasonable doubt by the testimony of the eye-witness Santosh (PW.1) coupled with the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) who have seen the accused prior to the incident.In addition to the aforesaid, the report of Ballistic Expert corroborates the use of double barrel muzzle loading riffle and the pallets were found in the person of deceased Jagannath as reveals from the testimony of Dr.R.K.Bhardwaj (PW.35).It is, therefore, contended that the conviction of appellant No.1 Rituraj Singh for the charge of Section 302 of I.P.C and Section 27 of the Arms Act is based on cogent evidence, however, the finding recorded by the Trial Court is just and proper.Insofar as the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C is concerned, it is contended by learned Government Advocate for the respondent/State that accused Rituraj Singh was driving the motorcycle while co-accused 6 Guddu alias Hira Singh was sitting as a pillion rider armed with gun, which has been used by accused Rituraj Singh in commission of murder of deceased Jagannath, therefore, the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C showing his common intention has rightly been directed by the Trial Court.It is further contended that the seizure of 12 bore gun bearing No.180/80 alongwith license of Ompal Singh has been made by the Police in the incident.Therefore, the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act has rightly been directed by the Trial Court.It is, therefore, prayed that looking to the findings as recorded by the Trial Court, interference in this appeal is not warranted.After having heard learned counsel for the parties and taking into consideration the findings as recorded by the Trial Court, the conviction of appellant Nos.1 & 2, namely, Rituraj Singh & Guddu alias Hira Singh is based on the testimony of eye-witness Santosh (PW.1) corroborated by the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) who have seen them prior to the incident on a motorcycle armed with gun.The Trial Court found correlation by their testimony because the double barrel muzzle loading riffle seized by Police, however, used as per the Ballistic Expert Report (Exhibit P/39) proved by the testimony of Sudhir Agrawal (PW.38).In the said report, it is said that prior to eight days of the incident, heated exchange took place between accused Rituraj Singh and deceased Jagannath on account of irrigating the field of accused Ompal Singh (father of accused Rituraj Singh) from Luharband wherein water chestnut (Singadha) of the deceased was sown.Thereafter, on 22.6.2002, accused Rituraj Singh for the said reason shot gun fire on deceased Jagannath as a result of which he died on spot.In the first 7 information report, it is said that one another person was present at the scene of occurrence but the story that accused Rituraj Singh came alongwith accused Guddu alias Hira Singh on a motorcycle has been developed subsequently after the first information report.The said fact find support from the merg intimation report (Exhibit P/2) because the edition with respect to the said allegation is in the original first information report and the merg intimation is visible by naked eyes.In the context of the aforesaid fact, the testimony of eye- witness Santosh (PW.1) as well as the other corroborative evidence considered by the Trial Court is required to be seen.In the testimony of eye-witness Santosh (PW.1), it is said that accused Rituraj Singh driving the motorcycle came alongwith accused Guddu alias Hira Singh, who was armed with a Gun on his shoulder and after going ahead to the deceased Jagannath, accused Rituraj Singh took the said gun from Guddu alias Hira Singh and shot fire on the deceased as a result of which he died.The story that Rituraj singh and Guddu alias Hira Singh came on a motorcycle is edited in the first information report as clearly visible in the original record by the naked eyes.The said story has been developed from the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) though since inception the said story was not in the first information report (Exhibit P/1) or in the merg intimation report (Exhibit P/2) if editing in those documents is accepted.In addition to the aforesaid, if the motive of the accused is seen then it would reveal that about eight days prior to the date of incident, heated exchange and altercation took place between accused Rituraj Singh and deceased Jagannath, therefore, appellant No.2 Guddu alias Hira Singh might not have any motive to participate in commission of the offence.If the testimony of eye-witness Santosh (PW.1) is taken into consideration then it is apparent that except the presence of Guddu alias Hira Singh, no direct act has been shown in his testimony.In 8 our considered opinion, if Guddu alias Hira Singh was going on the motorcycle due to which his presence alone is not enough to gather his intention in commission of the offence.If the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) is taken into consideration wherein against appellant No.2 Guddu alias Hira Singh it is said, when accused Rituraj Singh was driving the motorcycle, he was sitting as a pillion rider armed with the gun.It has come in the testimony of eye- witness Santosh (PW.1) that accused Rituraj Singh took the gun from accused Guddu alias Hira Singh and shot fire on the person of deceased Jagannath, therefore, looking to the said prosecution narration of eye- witness Santosh (PW.1), it is apparent that mere presence of accused Guddu alias Hira Singh itself is not sufficient to convict him for the charge of Section 302/34 of the I.P.C.Under such circumstances, the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C as directed by the Trial Court merely relying upon the testimony of eye- witness Santosh (PW.1) and also the corroborative testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) cannot be upheld and is liable to be set aside.Insofar as the involvement of appellant No.1 Rituraj Singh in commission of the murder of deceased Jagannath is concerned, eye-witness Santosh (PW.1) has specifically said that accused Rituraj Singh took the gun and shot fire on the person of deceased Jagannath.The said allegation of shot fire finds support from the medical evidence and the report of the Ballistic Expert, therefore, the conviction of appellant No.1 Rituraj Singh for the charge of Section 302 of the I.P.C does not warrant any interference in this appeal, therefore, the conviction of appellant No.1 Rituraj Singh as directed by the Trial Court is hereby maintained.Now reverting to the charge of Section 30 of the Arms Act against appellant No.3 Ompal Singh is concerned, it is seen that he has 9 been convicted because his 12 bore licensed gun has been used in commission of the offence.The prosecution has seized two guns vide Exhibit P/16; one is double barrel muzzle loading riffle and another is 12 bore gun bearing No.180/80 alongwith licence.No evidence has been brought on record that the 12 bore gun bearing No.180/80 of which the licence was in the name of Ompal Singh has been used in commission of murder of deceased Jagannath.The prosecution has also sent the double barrel muzzle loading riffle for Ballistic Examination and correlation of the said ballistic report of the use of the said gun has been proved while 12 bore gun was not sent for examination by the ballistic report.Therefore, it is clear that 12 bore gun bearing No.180/80 of which the licence was in the name of Ompal Singh has not been used in commission of the offence.In addition to the aforesaid, if the testimony of eye-witness Santosh (PW.1) and the corroborative piece of evidence of the testimony of Haricharan (PW.15), Harishankar (PW.18), Durga (PW.20) is seen then it is apparent that accused Guddu alias Hira Singh was armed with double barrel riffle which has been used as per the Ballistic Report and it is not 12 bore gun bearing No.180/80 or having two guns, therefore, the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act as directed by the Trial Court with an allegation that his licencee gun has been used by appellant No.1 Rituraj Singh cannot be sustained in law.Hence, the conviction of appellant No.3 Ompal Singh for the charge of Section of Section 30 of the Arms Act deserves to be set aside.But similarly insofar as the charge of Section 27 of the Arms Act is concerned, it is fully proved against appellant No.1 Rituraj Singh because the double barrel muzzle loading riffle has been used in the commission of the offence, therefore, such finding against appellant No.1 Rituraj Singh is in accordance to law.In view of the foregoing discussion, the conviction of appellant No.2 Guddu alias Hira Singh for the charge of Section 302/34 of the I.P.C and the conviction of appellant No.3 Ompal Singh for the charge of Section 30 of the Arms Act stands set aside while the conviction of appellant No.1 Rituraj Singh for the charge of Section 302 of the I.P.C and Section 27 of the Arms Act is hereby maintained upholding the judgment of the Trial Court to such extent.Consequent to setting aside the conviction against appellant No.3 Ompal Singh, the confiscation of 12 bore gun bearing No.180/80 and its licence stands set aside.Accordingly, this appeal is hereby allowed insofar as it relates to appellant No.2 Guddu alias Hira Singh and appellant No.3 Ompal Singh and it is hereby dismissed insofar as it relates to appellant No.1 Rituraj Singh.He be set at liberty forthwith if not required in any other case.At the end, it is our duty to record the words of appreciation in favour of the amicus curiae, who assisted the Court in the disposal of this appeal, which is pending since 2006 and in which appellant No.1 Rituraj Raj and appellant No.2 Guddu alias Hira Singh were in jail for last more than ten years.

Sections cited: Section 302 in The Indian Penal Code, Section 34 in The Indian Penal Code