JUDGMENT M.C. Jain, J.
1. Mala Singh and Gurdeo Singh were tried and acquitted in Sessions Trial No. 228 of 1981 before the Sessions Judge, Pilibhit. It was a case of double murder of Harnam Singh at the spot and his wife Smt. Kartar Kaur (who died on 2.6.1981 at 4.30 P.M. in District Hospital, Lakhimpur).
2. The incident had occurred on 31.5.1981 at about 7.15 P.M. at the hutment of the deceased Harnam Singh in Gurdwara in village Bazarghat Bhagwanpur, O.P. Hazara, Police Station Madhotanda, District Pilibhit. The charge against the accused respondent Mala Singh was under Section 302 read with Section 34 I.P.C. and against accused respondent Gurdev Singh under Section 302 I.P.C. simpliciter. The report was lodged by Amrik Singh PW 2 an eyewitness, son of the deceased on 31.1.1981 at 9.30 P.M. There was a third accused Darshan Singh (brother of Mala Singh) named in the F.I.R. As per the chargesheet, he was absconding. However, it is recorded in the impugned judgment that Darshan Singh was dead by the time the case came up for trial.
3. The prosecution case, in brief, was that Harnam Singh deceased was prosecuted for the murder of one Bachan Singh-brother of Mala Singh and Darshan Singh accused. Harnam Singh was convicted and had undergone the imprisonment. One Kartar Singh was also an accused in that case but he was acquitted in appeal. He was subsequently murdered. Mala Singh, Darshan Singh and two others were convicted for his murder. At the time of the present occurrence, their appeal was pending in the Supreme Court. Mala Singh and Darshan Singh were on bail. Litigation was also pending between Harnam Singh and Darshan Singh about certain land and that land had been attached. After the murder of Harnam Singh, those proceedings terminated in favour of his son. In May 1981, Harnam Singh was living in Bazar Ghat, O.P. Hazara, P.S. Madhotanda. He had a Jhala (hutment) in front of which there was some vacant land and then a public lane running north-south. Across the lane was Gurudwara facing east in which Harnam Singh worked as Granthi. Jhala of Harnam Singh had a door towards the east with a Chabutara abutting it. There were bushes towards south and west. On the fateful day at about 7.15 P.M. Harnam Singh returned from Gurudwara and was crossing the road to enter his Jhala Mala Singh and Gurdev Singh along with Darshan Singh emerged from the bushes from south. All of them were armed with guns. They accosted Harnam Singh and said that the matter would be decided that day Raising alarm, Harnam Singh entered his Jhala and tried to shut the door, but Darshan Singh and Gujrdev Singh pushed the gate inside and entered the Jhala. Baghel Singh PW 1 had come from the southern side and Amrik Singh PW 1 son of Harnam Singh was on the northern side of Gurdwara along with one Daryao Singh. They witnessed the occurrence. Mala Singh fired towards the witnesses and commanded them to desist from proceeding further. Meanwhile Darshan Singh fired at Harnam Singh who sustained injuries and fell down. Smt. Kartar Kaur wife of Harnam Singh tried to intervene but she was also shot at by Gurudev Singh, All the three accused made their escape good.
4. The witnesses reached the Jhala and found that Harnam Singh was dead while Smt. Kartar Kaur was unconscious. Amrik Singh wrote written report Ex.Ka-1 at the spot and went to the O.P. Hazara where he handed over the same at 9.30 P.M. Check report was prepared on its basis by Constable Hari Om who made entry in G.D. registering the case. The investigation was taken up by S.I. Janardan Rai PW 3 which followed as usual. The investigation followed as usual. As we mentioned earlier, Kartar Kaur also happened to die on 2.6.1981 in District Hospital, Lakhimpur. Sufficie it to say that both the deceased died of gunshot injuries, each having sustained one gunshot injury. Allegedly, Harnam Singh died of the shot opened by Darshan Singh and Smt. Kartar Kaur of the shot opened by Gurdev Singh accused.
5. Both the accused pleaded not guilty. The evidence adduced by the prosecution did not find favour with the learned trial Judge who recorded acquittal. Feeling aggrieved, the State has come up in appeal.
6. We have heard Miss Usha Kiran, learned AGA on behalf of the State/Appellant and Sri J.P. Singh learned counsel for the surviving appellant Gurdev Singh, the other accused respondent Mala Singh having died as per the report of the Chief Judicial Magistrate, Pilibhit dated 12.10.2004 and the appeal having abated against him under order dated 25.5.2005, It is urged from the side of the State that the acquittal is based on faulty appreciation of the evidence on record and is liable to be reversed. On the other hand, the counsel for the accused respondents has supported the acquittal recorded by the trial court. We, on our part, have carefully scrutinized the evidence on record and cross-checked the same with the findings of the trial court. Our considered view is that the testimony of the alleged eyewitnesses was not trustworthy and reliable and the trial Judge was perfectly justified in recording acquittal which is based on proper and judicious appreciation of the evidence and attending circumstances. A number of factors are lined up to justify the acquittal of Gurdev Singh respondent with whom alone the appellate court is presently concerned as would appear from the discussion that follows.
7. To begin with, Gurdev Singh is brother-in-law (Bahnoi) of the other accused Darshan Singh and Mala Singh (both dead). He had no personal or direct enmity with the deceased Harnam Singh whose murder was allegedly the aim of the accused. Smt. Kartar Kaur wife of Harnara Singh was not the target. Instead, she was allegedly shot dead by Gurdev Singh when she tried to intervene and save her husband Harnam Singh. As per the own case of the prosecution, the enmity was between Harnam Singh on one hand and Mala Singh and Darshan Singh accused (brothers) on the other. The reason was that Bachan Singh-brother of Mala Singh and Darshan Singh had been murdered by Harnam Singh He was convicted and had undergone imprisonment. The litigation was also pending between Harnam Singh and Darshan Singh about certain land. So, there was hardly any reason for Gurdev Singh to have associated himself with Mala Singh and Darshan Singh in achieving the goal of murder of Harnam Singh, which mission could well be achieved by Mala Singh and Darshan Singh themselves, both being armed with guns.
8. Baghel Singh PW 1 and Amrik Singh PW 2 were examined as eyewitnesses of the occurrence. Baghel Singh PW 1 was a rank chance witness and on scrutiny of his evidence we find that his presence itself at the scene of occurrence was most doubtful. He deposed that on the date of occurrence he had gone from his village Sidh Nagar to Bhagwanpuri for fetching some fodder. While returning therefrom, he passed through Bazar Ghat and on hearing alarm raised by Harnam Singh, he got down from his bullock cart and proceeded towards his Jhala and saw the occurrence. He spoke about the shooting by Darshan Singh and also subsequent shooting by Gurdev Singh hitting Smt. Kartar Kaur. Thereafter, he left. Admittedly, this witness was not living in Bazar Ghat. As per his own showing, at the time of occurrence he was there by chance as he was returning from Bhagwanpuri to Sidh Nagar. It was a strange coincidence that he could be passing Bazar Ghat at the exact time of occurrence. It was also admitted by him that on returning to village Sidh Nagar from Bhagwanpuri by the normal passage, he would not Have passed through Bazar Ghat. Admittedly, that was not the shortest route. He further admitted that he had not passed through Bazar Ghat while going to Bhagwanpuri from Sidh Nagar. He asserted that sugarcane was being cut on the field which was to be supplied at Khajuria Cane Purchasing Centre. Obviously, the alleged purpose of this witness visiting Bhagwanpuri was wrong because it was shown by the defence evidence that Khajuria Cane Purchasing Centre had stopped purchase from 26.4.1981. The incident occurred on 31.5.1981. So, there could be no occasion for cutting the cane on 31.5.1981 for being supplied to the said Purchasing Centre. Further, according to him, he had completed loading of the fodder by 3 P.M. and had started therefrom at about this time. As per the statement of Amrik Singh PW 2, distance between Bhagwanpuri and Bazar Ghat was about one Km. To the same effect was the statement of the Investigating Officer SI Janardan Rai PW 3. It went unexplained that this witness could reach Bazar Ghat at about 7.15 P.M. having started from Bhagwanpuri at about 3 P.M. He was travelling by bullock cart and consumption of about 4 hours in covering the distance of one Km spilled beyond comprehension. Apparently, the presence of Baghel Singh PW 1 at the spot was doubtful and no reliance could be placed on his testimony.
9. Amrik Singh PW 2 was the son of, deceased Harnam Singh. and Smt. Kartar Kaur. True, conviction is possible on the testimony of solitary witness provided he is wholly reliable. But in the present case, we notice a number of holes in the testimony of Amrik Singh PW 2 which cast serious doubt about his presence at the spot at the time of the incident He deposed that he was following his father and when he was towards the northern side of Gurdwara, he saw the three assailants armed with guns coming out of the bushes situate in the south. They accosted Harnam Singh and two of them followed Harnam Singh towards Jhala. He also claimed that Mala Singh fired towards him and other witnesses ' commanding them not to intervene by following them. The presence of this witness in Bazar Ghat at the time of the alleged occurrence was quite doubtful. The greater possibility was that this witness was called in the morning and then the F.I.R. was prepared and lodged by him, claiming himself to be an eyewitness. This witness himself admitted to be the resident of Bhagwanpuri when he was interrogated under Section 161 Cr.P.C. He claimed that he had described himself to be the resident of Bazar Ghat as well as Bhagwanpuri. He could not say as to why Bazar Ghat was not mentioned by the Investigating Officer in his statement. He claimed that there was one cot inside the Jhala, one outside and the third one had gone in borrowing. According to him, he had one brother, two sisters, mother and father and .all of them lived in that Jhala. It was doubtful that six persons would be living in that small sized Jhala, only using three cots. He himself was a grown up man aged about 19 years. The Investigating Officer found only one cot in Jhala. He did not find any cot outside. The size of Jhala was such that three cots could not be accommodated in it. He could not name even a single person from Bazar Ghat as an eyewitness, though their presence was accepted in this way that as per the F.I.R., a number of persons had gathered at the spot. Nonetheless, Daryao Singh (a resident of another village Tatar Nagra situated at a distance of 14 Kms.) and Baghel Singh PW 1 (also resident of another village Sidh Nagar) were named as eyewitnesses. His statement also showed that he had only casual acquaintance with Daryao Singh.
10. As per the prosecution case, the three culprits had taken cove behind the bushes for murderous attack on Harnam Singh and they were armed with guns. It was unnatural. If they wanted to kill Harnam Singh, they hardly needed to come out of the bushes to reveal their identity. They could have easily shot Harnam Singh from the bushes while he was proceeding to his Jhala and was near his Chabutara. The job could be accomplished by the culprits without disclosing their identity by coming out of the bushes.
11. On overall circumspectus, no reliance could be placed on the testimony of any of the two eyewitnesses. The possibility was there that the murder was committed sometime in the night when Harnam Singh and his wife were in the Jhala and after discovery of the murders, the time of the occurrence was preponed and eyewitnesses introduced fictitiously. The nomination of the accused could only be on the basis of suspicion. The view taken by the lower court on meticulous examination of the evidence was a reasonable view which does not deserve to be interfered with in this appeal against acquittal.
12. We, therefore, dismiss this Government Appeal against Gurdev Singh accused respondent. It has already abated against Mala Singh.
13. Certify the judgment to the lower court.