JUDGMENT M.C. Jain, J.
1. This is an appeal by the State against the judgment and order dated 10.3.1980 passed by Sri I.P. Singh, the then Sessions Judge, Ghaziabad in Sessions Trial No. 137 of 1977, acquitting the accused respondents Amar Singh, Rakam Singh, Sukhbir, Onkar alias Rirku, Iqbal, Ishwar and Krishna Pal of the offences under Sections 147/148/302/149 I.P.C Out of them, Amar Singh, Sukhbir, Iqbal and Ishwar had died during the pendency of the appeal and the same has abated against them. The Court is presently concerned with the remaining three accused respondents, namely, Rakam Singh, Onkar alias Rirku and Krishnapal.
2. The incident occurred on 7.6.1977 at about 7.30 A.M. at the outskirts of village Jalalabad, P.S. Muradnagar, District Ghaziabad and the F.I.R. was lodged the same day at 9 A.M. by Jogendra Singh PW 4. Rakarn Singh and Onkar alias Rirku are real nephews of Amar Singh (deceased appellant). Risal-grandfather of the deceased accused appellant Iqbal was the cousin brother of Amar Singh (deceased accused appellant). Ishwar was the nephew of Amar Singh. Krishna Pal accused is the grandson of Amar Singh. Amar Singh and Vikram Singh (deceased of this incident) had contested the election of directorship of Cane Society in which Amar Singh was defeated by Vikram Singh, A case under Section 307 I.P.C. against Rajbir Singh (nephew of Shiv Charan PW 1) and Ram Pal (son of Shiv Charan PW 1), Vikiam deceased and ten others (belonging to the group of Shiv Charan PW 1) started by Sukhbir Singh deceased accused appellant was pending in Meerut. Rirku and Kararn Singh were prosecution witnesses in that case while Vikram Singh deceased was doing pairvy for himself and other co-accused. Rajvir and Rampal were convicted while others including Vikram Singh deceased were acquitted in that case. 7.6.19787 (the date of present occurrence) was fixed for hearing the two convict persons on the quantum of sentence. In that connection, Shiv Charan PW 1, his nephew Jagvir Singh PW 7 and Vikram Singh deceased left the village at about 7 A.M. to go to Meerut When at about 7.30 A.M. they reached the khera of the village where the fields of accused persons were situate, they saw all the accused persons near the tubewell kotha of one of them, Amar Singh. Near the khera and tubewell of Amar Singh, there was a culvert. When Vikram Singh deceased was 4-5 paces ahead of that culvert and Shiv Charan PW 1 and Jagvir PW 7 were 4-5 paces before the culvert, all the accused abused Vikram Singh and challenged to set him right. Saying so, they started assaulting him and took him to the vacant land near the tubewell of Amar Singh. At that time, Amar Singh was armed with a DBBL gun; Rakarn Singh and Onkar Singh were armed with countrymade pistols; Iqbal carried a Ballam; Ishwar carried a Jailli, whereas Sukbhir Singh and Krishna Pal were armed with lathis. Amar Singh, Rirku and Rakarn Singh fired at Vikram Singh as a result of which he fell down. Thereafter, Amar Singh fired another shot on him from close range. Jaili and Ballam were wielded like lathis. Nawab Singh PW 2 also arrived there and witnessed the occurrence. Shiv Charan and Jagbir asked Nawab Singh to intervene and save the deceased as they feared that on account of enmity the accused could kill them also. Nawab Singh PW 2 advanced towards the accused persons but he was fired at. The aforesaid witnesses ran towards the village and narrated the incident to Vikram's nephew Jogendra PW 4 and Bijendra PW 10.
3. As we said above, the F.I.R. was lodged by Jogendra PW 4. A case was registered. The investigation followed as usual. The Investigating Officer reached the spot and busied himself with the activities related to the investigation of the case. The inquest on the dead body of the deceased was held whereafter after being sealed it was sent for post mortem. The post mortem was conducted on 9.6.1977 at 2.30 P.M. by Dr. O.P. Sharma, PW 6. The deceased was aged about 48 years of age. He had received as many as 25 ante mortem injuries out of which 5 were gunshot wounds including on chest. The rest were blunt weapon injuries in the form of contusions, abrasions and lacerations.
4. The defence was of false implication due to enmity.
5. The prosecution in all examined 16 witnesses. Out of them 13 were of formal nature, Eyewitnesses were three, namely, Shiv Charan PW 1, Nawab Singh PW 2 and Jagvir PW 7. Two witnesses were examined by the accused also in defence. The prosecution case did not commend itself to the trial judge, who finding many loopholes in the prosecution version, recorded acquittal.
6. We have heard Sri R.K. Singh AGA from the side of the State and Sri Ghanshyam Joshi for the accused respondents. The record has been perused. The learned A.G.A. has argued that the impugned judgment is perverse and, unreasonable being based on faulty appreciation of evidence. According to him, convincing evidence and material have been unjustifiably eliminated by the trial judge. On the other hand, the counsel for the accused respondents has urged that none of the so called eyewitnesses was present at the spot and they spoke only on the basis of their imagination. He submitted that the judgment of acquittal passed by the lower court does not call for any interference at all.
7. On going through the record and scrutinizing the evidence, we find ourselves in agreement with the finding of acquittal recorded by the trial Judge. It is not a case of perversity or misreading of evidence. Rather on giving full consideration to the evidence and material on record, acquittal could only be recorded. We proceed to state the sterling reasons in this behalf.
8. As stated earlier also, informant Jogendra PW 4 was not an eyewitness. The prosecution relied on the testimony of three eyewitnesses, namely, Shiv Charan PW 1, Nawab Singh PW 2 and Jagvir PW 7. Admittedly, there was bitter-most enmity between the accused respondents and the deceased Vikram with whom Shiv Charan PW 1 and Jagvir PW 7 were equally bracketed. That means to say, these two witnesses were on equal footing with the deceased Vikram, so far as the question of enmity qua the accused respondents was concerned. They claimed to have been accompanying the deceased Vikram Singh at the fateful time. The accused respondents were as many as seven in number variously armed with deadly weapons, i.e., firearms, cut weapons and lathis. These two witnesses and Vikram Singh were allegedly unarmed. It does not stand to reason that despite there being bitter enmity qua the accused, these two witnesses would have been left unhurt by the accused respondents, had they actually been accompanying him at the eventful time. It is further to be pointed out that Jagvir PW 7 was main accused in the murder of Tejpal father of the accused Iqbal. Jagvir PW 7 himself admitted old extreme enmity between him and other members of his family on the one hand and Amar Singh and other member of his family on the other on account of litigation including of criminal nature for many many years past. This being so, it did not stand to reason that dangerously armed seven accused respondents would have left unhurt these two witnesses Shiv Charan PW 1 and Jagvir PW 7 who were unarmed.
9. We should not be misunderstood to be laying down that for being believed as an eyewitness of an incident of assault, one should himself necessarily be an injured of that incident. But the point of the matter is that keeping in view the extreme inimical background between Shiv Charan PW and Jagvir PW 7 on the one hand and the accused respondents on the other, they would not have been left unhurt.
10. The presence of Nawab Singh PW 2 was also not free from doubt. Muradnagar was at a distance of about two miles from the village of the incident where this witness was allegedly going to purchase two bags of fertilizer. This reason given by him for his presence at the spot at about 7.30 A.M. (the alleged time of incident) was not convincing. The distance being only two miles, there was hardly any necessity for him to have been going to Muradnagar at that hour of morning, much before the opening time of market at Muradnagar. He admitted that even after the incident, he did not go to Muradnagar to purchase fertilizer and returned to his village. He also did not seem to be an independent witness. He had serious grudge against some of the accused. He admitted that his cousin Raj Pal was murdered for which Harvir and Ranvir Singh sons of Brahm Singh were prosecuted. He also admitted that accused Amar Singh and Sukhbir (both deceased accused appellants) were prosecution witnesses but they did not give evidence. Admittedly, that case ended in acquittal. That apart, he could not deny the fact that Sukhvir accused had filed a case under Section 424 I.P.C. against his father and uncle. He simply expressed his ignorance. Obviously, he was not an independent witness.
11. We should also point out that the deceased in all received 25 injuries, out of which five were gunshot wounds and the rest were of blunt weapons. The number and nature of injuries sustained by Vikram rather indicated as if there was none around when he had been attacked. The culprits, whosoever they were, assaulted him at leisure facing no challenge or resistance from any quarter.
12. Another improbability was that Iqbal and Ishwar accused appellants (both dead) were said to have been armed with spear and Jaili respectively but the deceased did not sustain any piercing or penetrating injury. The ocular testimony could not be believed that these weapons had been used as lathis. When a person is armed with a particular weapon, he would naturally use it in its normal manner. The alleged unusual use of these weapons by these two accused as spoken by the prosecution witnesses was too puerile to be believed.
13. The above strong factors support the acquittal recorded by the trial Judge. Needless to say, the court of law is to be guided by the legal evidence adduced before it, and not by conjectures and surmises. The view taken by the lower court is the only possible and reasonable view on proper judicious appraisal of evidence. It is not even a case where two views could be possible. In fact, only one view of acquittal could be taken on. weighing the evidence and attending circumstances in judicial scale.
14. Consequently, we see no merit in this appeal and we dismiss it. It has already abated against the accused appellants Amar Singh, Sukhvir, Iqbal and Ishwar.
15. Certify the judgment to the lower court for incorporating necessary entry in the relevant register with intimation of compliance to this Court within two months.