1. The applicants have preferred this criminal revision against the judgment of acquittal dated 27.02.2009 passed by the learned 2nd Additional Session Judge, Durg in ST No.266/2005, whereby the non-applicants No.1 & 2 have been acquitted of the charges punishable under Section 302 read with Section 34 & Section 201 of Indian Penal Code, 1860 and Sections 25 & 27 of the Arms Act, 1959.

2. Facts of the case in brief are that, on 02.08.2005 at about 8:45 pm, a telephonic information was given by one Vijay Agrawal informing that his neighbour deceased Radheshyam Agrawal has been shot dead by unknown persons, upon which a report was lodged against the unknown persons for committing murder of the deceased, thereafter the investigation was conducted, wherein the involvement of the accused/non-applicant No.1 was found, upon which his memorandum was taken and based upon his memorandum, the non-applicant No.2 was also found involved in commission of the offence and the pistol and bullets were seized, by which the deceased was alleged to have been shot dead. Thereafter, after usual investigation, a charge sheet for the offence punishable under Section 302 read with Section 34 and Section 201 of IPC and Sections 25 & 27 of the Arms Act was submitted before the concerned Magistrate, who committed the case to the Sessions Judge and after transfer case was tried by the trial Court.

3. The learned Trial Court framed charges against the accused/non-applicants for the aforesaid offence. The statement of the accused/non-applicants was recorded under Section 313 of Cr.P.C., in which they abjured their guilt and pleaded innocence, however, they did not examine any witness in their defence, whereas the prosecution examined as many as 44 witnesses to prove the guilt of the accused/non-applicants. The learned Trial Court after appreciating the oral and documentary evidence available on record acquitted the non-applicants No.1 & 2 of the aforesaid charges levelled against them, against which this revision has been filed.

4. Learned counsel for the applicants submits that the learned Trial Court has wrongly acquitted the accused/non-applicants of the aforesaid charges. Though some of the prosecution witnesses have turned hostile, but the other witnesses have supported the case of the prosecution. The accused/non-applicants had criminally intimidated the prosecution witnesses, as such they have turned hostile. The learned Trial Court has failed to appreciate the fact that the accused/nonapplicants were involved in illegal money lending, whereas the deceased was a sincere employee and because of absent of the non-applicant No.1 from duty for about one and half year, an enquiry was conducted against him and he was dismissed from service by the deceased and in revenge of the same, the accused/non-applicants committed murder of the deceased by firing bullets over him and the gun and bullets have also been seized based on their memorandum, but the learned Trial Court has ignored all these facts and has wrongly acquitted the accused/non-applicants. Therefore, the impugned judgment of acquittal may kindly be set aside.

5. Learned counsel for the non-applicant No.1 supports the impugned judgment of acquittal and opposes the submission made by the applicants' counsel and submits that the learned Trial Court after appreciating the oral and documentary evidence available on record has rightly acquitted the accused/non-applicants of the aforesaid charges, as no evidence of non-applicants’ involvement was found in commission of the aforesaid offence. He further submits that none of the prosecution witnesses have supported the case of the prosecution and the accused/non-applicants were not found involved in commission of the aforesaid crime, as such the accused/non-applicants have been acquitted. Therefore, the revision may kindly be dismissed.

6. Learned State counsel adopts the submission made by the applicants’ counsel, as no appeal was preferred by the State against the judgment of acquittal passed by the learned Trial Court.

7. We have heard learned counsel for the parties and perused the material available on record.

8. Though the complainant PW-1 Vijay Agrawal has admitted that the deceased was shot dead near his house, as the deceased was his neighbour, and he also got lodged report of the same, but he did not identify the persons who shot fire on the deceased. PW-40 Rakesh Bhatt has supported the case of the prosecution, but mere his supporting of case is not sufficient enough to convict the accused/non-applicants for the aforesaid offence. He deposed in his examination-in-chief that pistol and bullets were seized in front of him from the house of the accused/non-applicants, whereas seizure witness Arun Nirmalkar was not examined. The other seizure witness PW-21 Manoj Sahu has supported the statements of the accused/non-applicants, but he admitted that while the articles were seized, he did not go to the inside of house of the accused/non-applicant No.1 and even he has not see the aforesaid articles, as the same was in closed envelope and he was only informed about the same. He has further admitted that he has not gone into the house of the accused/nonapplicant No.2. In his cross-examination, he admitted that the police personnel called him at police station one day before his court examination and got him understood his statements and further this witness has not turned hostile before the Trial Court and has denied that no seizure of pistol and bullets was done in front of him, but this fact has not been proved by other conclusive evidence. The other prosecution witnesses have also not supported the prosecution case. Thus, the whole prosecution story appears to be doubtful and none of the witnesses have seen the accused/nonapplicants near the house of the deceased, as such based on the previous rivalry or revenge, it cannot be held that the accused/non-applicants are guilty of the aforesaid offence in absence of any cogent evidence or circumstantial evidence appearing against them.

9. Though the pistol and bullets (live cartridges) have been seized based on the memorandum of the accused/nonapplicants persons, but mere seizure of the aforesaid articles does not disclose the involvement of the accused/non-applicants in the crime in question without there being any clinching evidence available against them and even seizure of the aforesaid articles have not been supported by the seizure witness and one of the seizure witness has also not been examined. Further none of the witnesses have seen the accused/nonapplicants while firing on the deceased there is also not clinching circumstantial evidence against accused/nonapplicants and based on previous enmity only, the accused/non-applicants cannot be held guilty of the aforesaid offence and to prove their guilt, the prosecution must have proved its case beyond reasonable doubts, which it has failed to do so.

10. In view of the foregoing discussions, we are of the considered view that the judgment passed by the learned Trial Court acquitting the accused/nonapplicants of the aforesaid charges is based on the proper appreciation of oral and documentary evidence available on record and the finding recorded by the learned Trial Court is neither perverse nor contrary to the record, as such the same does not call for any interference by this Court.

11. The revision being bereft of any substance deserves to be and is hereby dismissed accordingly.