(1.) In the instant case, there are certain facts, which are not in dispute, namely, that deceased Hemraj Singh was a Police Constable and was also a tenant of the appellant, who was also a Police Constable. The First Information Report, in this case, was filed by Smt. Sita Devi wife of the deceased, who deposed as PW 1. In the First Information Report, it was stated that around 00:00 A.M. of 15th May, 2001, somebody, unknown to the informant, called the victim and the victim went with that unknown person and, soon thereafter, the informant heard the sound of a gun shot and, then, she went and found that the deceased is lying dead. This First Information Report was lodged on 15th May, 2001 at 10.15 A.M. In course of trial, the copy of the G.D. was produced. In that, as is available at page 55 of the paper book, it was recorded that the gun shot was heard by the appellant and by another Constable, namely, Naresh Chandra Sharma. According to this entry, appellant asked Naresh Chandra Sharma to get the Station Jeep for the purpose of transporting the victim to hospital. However, that was not done, as, by that time, it was noticed that the victim is already dead. In the said G.D. entry, it was stated that no family member of the deceased was in the house. After the FIR was lodged, inquest was made, when it transpired that a .38 bore country made pistol is lying by the side of the dead body of the deceased. The post mortem of the dead body was conducted by Dr. Surendra Singh (PW 5), who found that the cause of death was a bullet injury. The bullet was embedded inside the chest of the victim and the same was retrieved. The case was ultimately transferred for investigation to C.B.C.I.D. On 11th January, 2002, the new investigating team found, as a fact, that on 12th May, 2001, a .38 bore service revolver was issued to Praveen Tyagi, SOG, SI, and that, the same was returned by Praveen Tyagi on 15th May, 2001. It also transpired that the said service revolver was issued by Rudrapur Malkhana and the same was also returned to Rudrapur Malkhana. The bullet retrieved from the dead body, the country made pistol and the service revolver that was issued to Praveen Tyagi, were sent for examination of Forensic Science Laboratory, Agra. The Forensic Science Laboratory, Agra reported on 2nd March, 2002 that the bullet, which was embedded in the chest of the victim, was fired from the revolver which was issued to Praveen Tyagi. Soon thereafter on 23rd April, 2002, Praveen Tyagi filed an affidavit stating that on 14th May, 2002, he handed over the service revolver alongwith 12 bullets to the appellant for depositing the same at Malkhana Doraha, but the appellant did not do so, instead he handed over the said service revolver and 12 bullets at Bazpur at 9.00 A.M. of 15th May, 2001, The incident also happened at Bazpur. It was stated that thereafter the service revolver and the bullets were deposited by Praveen Tyagi himself at Malkhana, Rudrapur. C.B.C.I.D., thus, concluded the investigation and filed a charge-sheet against the appellant alleging that he is guilty of commission of an offence punishable under Section 302 of I.P.C. Charge Was, accordingly, framed and, in order to prove the said charge, 14 witnesses were produced. PW 1 deposed before the court below that it was the appellant, who came to call the victim; she accompanied the victim and the appellant, when the appellant fired upon the victim and threw the gun. The court below has committed grossest of gross error in accepting the evidence of PW 1. The fact, what was stated by PW 1, is absolutely opposite to what was stated by her in the First Information Report. Further, according to PW 1, the firing was caused from the country made pistol recovered from the vicinity of the dead body, as, according to her, appellant threw the gun used for firing. The Forensic Science Laboratory report clearly established that the gun, which was found by the side of the dead body was not used to fire the bullet, which was found embedded in the chest of the deceased. The other material evidence was of Praveen Tyagi, who deposed as PW 8. In course of tendering evidence, he stated that what was revealed by him in his affidavit filed on 23 April, 2002, was not revealed by him earlier despite he having been asked questions under Section 161 of the Code of Criminal Procedure, inasmuch as, the death in the instant case was a suicidal death. PW 8 was, therefore, perfectly aware that a country made pistol was found, when the dead body of the victim was found. How did he come to know the same, was not disclosed. He was a responsible officer and, according to his own saying, he could not have handed over a service revolver to a Constable unless situation demanded. According to the evidence, given by PW 8, no situation demanded for giving of the service revolver to the appellant. He, however, insinuated safety as the reason. The fact remains that he did not feel it necessary to reveal alleged handing over of the service revolver to the appellant until such time the Forensic Science Laboratory established the fact that it was that service revolver, which was used in commission of the crime in question. The question is, could a prudent person rely upon such evidence of PW 8? Head Constable Mohd. Ubaish (PW 6) corroborated the statements given by PW 8. PW 6 also did not think it necessary to reveal, until such time the Forensic Science Laboratory report dated 2 March, 2002 established, that it was the service revolver which was used for the murder in question. Mohd. Ubaish was the Head Constable, whereas the appellant was the Constable. If security was the reason for handing over of the service revolver, why the same was not given to the Head Constable and, instead, was given to the Constable, was not explained. The motive for the crime appears to be a debt due by the appellant to the tune of Rs. 3,000/- to the victim. In order to suggest that such debt was, in fact, due, xerox copy of accounts, allegedly written by the victim, was produced. In law, xerox copy of a document is not even a secondary evidence. Be that as it may, the said accounts do mention the name of Naresh, but the same does not pinpoint that it is the appellant Naresh, who has been named. Further the debt had, at one point of time, stood to Rs. 22,000/- and, then, to Rs. 18,290/-. The same was gradually reducing. Under Section 34 of the Evidence Act, no one can be charged merely on the basis of an account. The same requires corroboration. No corroboration to that account was produced. In other words, there was no independent evidence of the appellant taking any loan, at any point of time, from the victim. Victim, as aforesaid, was the tenant of the appellant. In any event, when the debt was Rs. 22,000/- at one point of time, that did not motivate the appellant to murder the victim, but when the same was reduced to Rs. 3,000/-, that motivated the appellant to murder the victim, is somewhat not acceptable to a prudent person. That apart there was no other evidence, on the basis whereof it could be said that the crime alleged can be taken, as proved.
(2.) We, accordingly allow the appeal, set aside the judgment and order under appeal and also set aside the sentence awarded.
(3.) Appellant is on bail. His bail bond is cancelled and sureties are discharged. He need not surrender.;