IMPORTANT POINT
The court acquitted the appellant due to insufficient evidence proving instigation and inadequate recovery of the weapon, emphasizing the need for corroborative evidence in serious charges.

ORDER :

1. The present criminal appeal under section 374(2) of Cr.P.C. has been filed challenging the judgment dated 13.11.1997, whereby the learned Sessions Judge, Barmer convicted and sentenced the appellants as under:

2. At the outset, Mr. Bishnoi, learned Public Prosecutor on the basis of factual report dated 07.05.2024 informed that the appellant No. 2 - Channu @ Chanesar has since passed away.

3. Hence, the present appeal qua appellant No. 2 - Channu @ Chanesar stands abated.

4. The facts in brief, which are relevant for the present purposes are that on 05.07.1995 an FIR came to be registered pursuant to an information/written complaint given by Bhagataram - brother of the deceased (Narnaram), in which he stated that he and his brother were cleaning their field, when they heard sound of firing and proceeded towards the sound and found that persons namely Tamachi, Channu @ Chanesar and Luna were engaged in hunting. On being questioned and cautioned by Narnaram and him, those persons got agitated and the appellants Tamachi and Channu @ Chanesar instigated the principal accused - Luna to fire. The principal accused opened fire at the deceased, who died instantaneously.

5. The learned trial court convicted the accused Luna for the offence under Section 302 IPC, whereas the appellant no. 1 Tamachi was convicted for the offences under section 302 read with section114 of IPC and section 3/25 of Arms Act.

6. Challenging the appellant's conviction for the offence punishable under section 3/25 of Arms Act, Mr. Kumbhat learned counsel for the appellant argued that the recovery memo (Exhibit-P/27) was prepared in the presence of two witnesses namely Bhoma and Arjan and both of them did not appear in the witness box and therefore, the recovery of the gun was not proved by the prosecution.

7. Mr. Kumbhat, leaned counsel for the appellant also argued that even as per the prosecution case, the principal accused Luna so also appellant was having gun in his hand and therefore, the probability that the present appellant would instigate the co-accused Luna to fire on the deceased is negligible. He added that had the present appellant had any intention to kill the deceased, nothing stopped or prevented him from firing himself, as he admittedly had a gun in his hand for which he stands convicted for the offence under Section 3/25 of the Arms Act.

8. Learned counsel for the complainant and learned Public Prosecutor vehemently opposed the submissions made by the learned counsel for the appellant and contended that testimony of the eyewitness Bhagataram (PW-8) is enough to convict the appellant, as said witness (PW-8) in his statement had clearly deposed that it was the appellant, who instigated the principal accused Luna to fire at the deceased and since such evidence has remained un-controverted, the appellant's conviction deserves to be upheld.

9. Learned Public Prosecutor further contended that simply because the witnesses of recovery memo have not appeared in the witness box, it cannot be said that the recovery was not proved, particularly when the investigating officer has deposed that the appellant himself had given information about the gun and the same was recovered at the instance or information given by the appellant under section 27 of Indian Evidence Act. Therefore, the appeal deserves to be dismissed.

10. Heard learned counsel for the parties and perused the record including the statement of eyewitness Bagataram.

11. So far as the conviction of the appellant under