JUDGMENT M. Chaudhary, J.
1. This is a Government appeal filed on behalf of the State from judgment and order dated 20th of December, 1983 passed by III Additional Sessions Judge, Muzaffar Nagar in sessions trial No. 334 of 1981 State v. Ram Pal and Anr. acquitting both the accused of the charge levelled against them under Section 302 IPC.
2. Brief facts giving rise to this appeal are that one Lal Singh had three sons namely Hari Singh, Jaswant Singh and Birbal Singh. Brij Pal Singh, Ved Pal and Gajendra are the sons of Birbal Singh. Surajpal, Netra Pal and Satvir Singh are sons of Jaswant Singh. Hari Singh had died some 10-12 years prior to the occurrence. Ram Pal and Ram Sharan are sons of Hari Singh. Smt Ratno is the wife of Jaswant Singh and Smt Jagbiri that of Ram Pal. It appears that till the death of Hari Singh the agricultural property was joint and all the three sons constituted joint family with their father Lal Singh. On the death of Hari Singh, Lal Singh partitioned the agricultural property among his sons Jaswant Singh, Birbal Singh and sons of Hari Singh, since deceased in equal share retaining 18 bighas of land for himself. In the family partition the plot on which there was a joint tubewell fell to the share of sons of Hari Singh. About two or two and a half years prior to the occurrence dispute started in the family as Ram Pal, son of Hari Singh started claiming tubewell as the sole property belonging to him and his brothers Sahendra Pal and Ram Sharan as the electric connection of the tubewell was in the name of his father Hari Singh. In the year 1980 Ram Pal alongwith his brothers filed a suit for permanent injunction in the Court of Munsif Muzaffar Nagar against Birbal Singh and Jaswant Singh and their sons restraining them from interfering in their exclusive possession and use of the tubewell alleging that it was their sole property. The suit was pending at the time of occurrence. Proceedings under Sections 107 & 117 of the Code of Criminal Procedure were also pending between them. Earlier Lal Singh executed a deed of will bequeathing his 18 bighas of land among all the sons of Birbal Singh, Jaswant Singh and Hari Singh equally as each of his sons had got three sons. However subsequently he executed an agreement of sale regarding his 18 bighas of land in favour of Brijpal Singh son of Birbal Singh and Satvir Singh son of Jaswant Singh for a consideration of Rs. 48,000. 00 having received Rs. 40,000. 00 and remaining sum of Rs. 8,000. 00 was to be paid at the time of registration of the sale deed but after one or two years of executing the agreement of sale Lal Singh died and therefore after the death of Lal Singh that 18 bighas of land was got mutated in the name of all the sons of Hari Singh, Jaswant Singh and Birbal Singh. However Brijpal Singh and Satpal Singh filed objections in those mutation proceedings but got the same dismissed and the matter was compromised between members of the family. Subsequently Ram Sharan filed a suit for partition of 18 bighas of land owned by Lal Singh which was pending at the time of the occurrence. In all revenue cases and the civil suit Birbal Singh used to do 'pairvi' for himself and Jaswant Singh and their sons which was not relished by Ram Pal and Ram Sharan. Inspite of the fact that civil suit was pending in respect of the tubewell Birbal Singh and his son Brij Pal Singh used to irrigate their field from the tubewell situate in the agricultural land which fell to the share of Ram Pal and his brothers. Two days prior to the occurrence Birbal Singh and his son Brij Pal Singh had irrigated their field from the tubewell and in the evening as they went to shut off the tubewell Ram Pal and Ram Sharan were present there and they told that the tubewell belonged solely to them and they would not permit them to irrigate their fields from their tubewell which resulted in an altercation between them and there was an exchange of hot words between Birbal Singh on one hand and Ram Pal and Ram Sharan on the other and then the latter had threatened Birbal Singh to see him. In the morning of 20th of June 1981 Birbal Singh alongwith his son Brij Pal Singh and brother Jaswant Singh were going from their village to Muzaffar Nagar market for purchasing household goods and as Birbal Singh alongwith his son and brother reached near the sugarcane field, Ram Pal taking his gun alongwith Ram Sharan came from the tubewell and Ram Pal asked Ram Sharan to shoot Birbal Singh as he used to do advocacy in litigation and immediately Ram Sharan whipped out countrymade pistol and fired at Birbal Singh hitting him at his chest and Ram Pal also fired with his gun in quick succession which also hit Birbal Singh. In the meanwhile Jaswant Singh and Brijpal Singh took position by laying down on the ground and escaped hurt. At that time one Jagdish was coming from the side of village Harsauli and Tejvir Singh, Harvir Singh, Amar Singh and Matroo Singh were also coming from the village side a few paces behind them. They challenged the assailants and then both of them fled away towards village Harsauli. Sustaining the fatal injuries Birbal Singh fell at the ridge of the field of Niranjan Singh situate by the side of chak road and died instantaneously. An empty cartridge was lying near the dead body. Immediately Brij Pal Singh, son of the deceased went back to his village and wrote report of the occurrence and then taking the tractor of his Tau Jaswant Singh alongwith Rajendra went to police station Titawi situate at a distance of six miles from the place of occurrence and handed over written report of the occurrence to the police there at 10:30 a.m. The police prepared check report on the basis of the written report and made entry regarding registration of the crime in the GD accordingly. Station officer Brij Mohan Misra who took up investigation of the case in his hand alongwith SI Rajendra Singh and police force proceeded to the scene of occurrence. On reaching at the spot SI Rajendra Singh drew inquest proceedings on the dead body of Birbal Singh at the directions of the investigating officer. He prepared inquest report (Ext Ka 14) and other necessary papers (Exts Ka 15 to ka 17) and handed over the dead body in a sealed cover alongwith necessary papers to constables Sukhbir Singh and Phool Kumar for being taken for its post mortem.
3. Autopsy on the dead body of Birbal Singh was conducted by Dr S.K. Sharma, Medical Officer District Hospital Muzaffar Nagar the same day i.e. 20.6. 81 at 4:30 p.m. which revealed below noted ante mortem injuries on the dead body :
1. Multiple gunshot wounds of entry over whole of chest and upper half of abdomen in an area of 14" x 12" each measuring 1/8 " x 1/8" with margins inverted. No tattooing or blackening was present around the wounds.
2. Two gun shot wounds of entry in an area of 1 1/2" x 1" over front of left upper arm middle third with margins inverted. No blackening or tattooing was present around the wounds.
4. On internal examination 5th and 6th ribs on left side and 4th rib on right side were found fractured anteriorly. Both the lungs and pleurae were found punctured at places. Pericardium and heart were found punctured each at four places. Peritoneum and stomach were punctured at many places and stomach contained 4 oz semi digested fluid. Small and large intestine were half full and each punctured at two places. Liver and gall bladder were also punctured at four places. The doctor recovered 21 metallic pellets from inside the injuries.
5. The doctor opined that death was caused due to shock and haemorrhage as a result of injuries about half day ago.
6. Station Officer Brij Mohan Misra, the investigating officer inspected the scene of occurrence and prepared its site plan map (Ext Ka 9). He also collected blood stained and simple earth from the scene of occurrence and picked up empty cartridge and wads lying there and prepared their memos (Exts Ka 10 & Ka 11) respectively. Then he recorded statements of the witnesses. He also took search of the house of Ram Pal and Ram Sharan and recovered DBBL licensed gun No. 7902062 and a cartridge belt containing 10 live cartridges kept in a wooden box from their house and prepared its memo (Ext Ka 12). He also got blood stained earth collected from the spot and blood stained clothes of the deceased sent for Serologist's opinion to Forensic Science Laboratory. On 12th of July 1981 he recorded statement of witness Harvir Singh as he was not available to him earlier. He also got the licensed DBBL gun of accused Ram Pal and ten cartridges in the cartridge belt recovered from his house and the empty cartridge and wads picked up from the place of occurrence sent to Forensic Science Laboratory for the opinion of Ballistic expert. After completing the investigation he submitted charge sheet against the accused accordingly.
7. A perusal of report of the Serologist, Forensic Science Laboratory UP Agra goes to show that it mentions only this much that blood stained clothes and blood stained earth contained blood (Ext Ka 27). A perusal of the report of Ballistic Expert, Forensic Science Laboratory Lucknow goes to show that after experiments done scientifically he found that empty cartridge was fired from the right barrel of the licensed DBBL ( Ext Ka 8).
8. After framing of charge against the accused the prosecution examined Brij Pal Singh (PW 1), Harvir Singh (PW 2) and Tejvir Singh (PW 3) as eye witnesses of the occurrence. PW 4 Dr S.K. Verma, Medical officer District Hospital Muzaffar Nagar who conducted autopsy on the dead body of Birbal Singh has proved the post mortem report (Ext Ka 2). PW 5 constable Sukhbir Singh to whom dead body of Birbal Singh in a sealed cover alongwith necessary papers was handed over for being taken for its post mortem has stated the said fact. PW 6 Tilak Ram Sharma, Pharmacist District Hospital Muzaffar Nagar who sent the blood stained clothes and earth to Forensic Science Laboratory for Serologist's opinion in pursuance of the orders of Chief Judicial Magistrate has stated the said fact. PW 7 HC Rameshwar Prasad who prepared the check report on the basis of the written report handed over to him at 10:30 a.m. on 20th of June 1981 and made entry regarding registration of the crime in GD has proved these papers (Exts Ka 3 & Ka 4). PW 8 Om Prakash Ram Tripathi, Ballistic Expert Forensic Science Laboratory Lucknow who gave his report that empty cartridge (EC 1) was fired with DBBL gun No. 7902062 from its right barrel has proved the report stating that he fired 8 cartridges from the DBBL gun aforesaid and after microscopic comparison he gave his report (Ext ka 8). Testimony of PW 9 Randhir Singh HM Sadar Malkhana and PW 12 constable Ishwar Singh is formal as they deposed with regard to depositing of sealed packets of case property in the Sadar Malkhana. PW 10 station officer Brij Mohan Misra who investigated the crime has proved the police papers. PW 11 SI Rajendra Singh who drew inquest proceedings on the dead body of Birbal Singh on the direction of the investigating officer has proved the inquest papers.
9. Both the accused pleaded not guilty denying the alleged occurrence altogether and stating that they were got implicated in the case falsely on account of enmity. They also examined DW 1 Nain Singh in their support who stated that he never gave any part of his agricultural land to any person on batai and that he did not know any person named Tejvir.
10. On an appraisal of the parties' evidence on the record the learned trial judge disbelieved the prosecution case and evidence resulting in acquittal of accused Ram Sharan under Section 302 IPC and Ram Pal under Section 302 read with Section 34 IPC.
11. Feeling dissatisfied with the impugned judgment the state has preferred this appeal assailing acquittal of both the accused.
12. We have heard Sri Z.K. Hasan, learned AGA for the State appellant and Sri P.N.Misra learned counsel for the accused respondents and gone through the record.
13. Learned AGA for the State appellant vehemently argued that the findings recorded by the trial judge suffer from illegality as he has given undue importance to minor discrepancies taking suspicious view of the evidence based on conjectures and surmises and hence the impugned judgment can not be maintained in law and is liable to be set aside. However learned counsel for the accused respondents contended that the trial judge has given cogent and convincing reasons for recording acquittal of the accused and since the findings recorded by the trial court are not perverse or vitiated by any serious error it need not be interfered with by this court in appeal.
14. It is well settled that in criminal cases if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to their innocence the view which is favourable to the accused should be adopted. On the basis of this very principle appeal from an order of acquittal should be interfered with only when there are compelling and substantial reasons therefor. After going through the impugned judgment and order and record of the case we find ourselves unable to agree with the findings recorded by the court below.
15. PW 1 Brij Pal Singh, PW 2 Harvir Singh and PW 3 Tejvir Singh have appeared as eye witnesses of the occurrence. PW 1 Brij Pal Singh, son of the deceased has narrated all the facts of the occurrence from the beginning to the end as stated above deposing that at about 8:30 a.m. the alleged morning as he alongwith his father Birbal Singh and Tau Jaswant Singh reached near his sugarcane field, Ram Pal taking his gun and Ram Sharan came from the side of their tubewell on the chak road and Ram Pal asked Ram Sharan to shoot Birbal as he used to do much advocacy in litigation. And immediately Ram Sharan whipped out countrymade pistol and fired at Birbal Singh hitting him at his chest and immediately Ram Pal also fired with gun hitting him and as the witnesses who were passing through the chak road challenged the assailants they took to their heels towards village Harsauli. He also proved the written report handed over by him at the police station the same morning at 10:30 a.m. at police station Titawi. PW 2 Harvir Singh and PW 3 Tejvir Singh also corroborated him stating likewise. All the three witnesses were subjected to searching and rambling cross-examination but nothing tangible could be brought on the record to shake their credibility. It is a broad day light murder. Testimony of all the three eye witnesses stands corroborated by FIR of the occurrence lodged promptly at police station Titawi situate at a distance of some six miles from the place of occurrence and the medical evidence. A perusal of the post mortem report goes to show that stomach contained 4 oz of semi digested fluid. PW 4 Dr S.K. Sharma who conducted autopsy on the dead body stated that the deceased would have taken food two hours before his death. PW 1 Brij Pal Singh also stated in his cross-examination that his father Birbal Singh had taken something about one and half an hour before proceeding from his house. Thus medical evidence leaves no room for doubt regarding the time of the occurrence.
16. However the trial judge has doubted the testimony of all the three eye witnesses on one ground or the other for no substantial reasons. He doubted the testimony of PW 1 Brij Pal Singh mainly on threefold grounds: (i) he was involved in an abduction case of a lady and that case was still pending at that time, (ii) he alongwith his father and brothers assaulted Nirmal and that case was also pending against him at the time of the occurrence and (iii) he alongwith his cousin Satvir son of his Tau Jaswant Singh fabricated the agreement of sale regarding 18 bighas land of his grand father Lal Singh debarring his real brothers, cousins and sons of his deceased uncle Hari Singh from that property observing that he was a man of such character and mentality that he could do anything for his self interest. The trial judge also observed that inspite of the fact that civil suit of perpetual injunction filed by Ram Pal was pending against him in the civil court he used to irrigate his land from the tubewell owned by Ram Pal and his brothers forcibly. We have given our anxious consideration to all these grounds and we are of the view that neither of these grounds aforesaid got any substance so as to render this witness Brij Pal Singh an unreliable person. If a person was involved in an abduction case it can not be said that in fact he was guilty of that offence. There may be so many reasons for involving a person in a case falsely. Further, admittedly Brij Pal Singh alongwith his father and brothers were being prosecuted for assaulting Nirmal but admittedly there was a cross- case also against Nirmal and others initiated at the instance of Birbal Singh, the deceased against Mahabir,father of Nirmal and others. Regarding the alleged agreement of sale, without being adjudicated upon by a court of law it can not be said that it was fabricated one. Admittedly those proceedings ended in compromise and after the compromise 18 bighas of land owned by Lal Singh was mutated in the names of all his legal representatives. No doubt, Brij Pal Singh and Jaswant Singh mentioned in the alleged compromise that they had not given Rs. 40,000. 00 as part payment to Lal Singh; but in the family there are so many matters and on what terms the compromise was reached between the parties are not known. Hence any adverse inference can not be drawn therefrom as PW 1 Brij Pal Singh stated that whatever he was directed to write in the compromise he got the same mentioned therein for getting the objections rejected. Regarding irrigation of their land by Brij Pal Singh and his brother from the tubewell, it appears that the field in which the tubewell was situate fell to the share of Ram Pal and his brothers but that tubewell was joint family property as it was installed in the life time of Hari Singh and Lal Singh before consolidation and partition in the family and therefore Brij Pal Singh and his father Birbal claimed their right for irrigation of their land adjoining thereto from that tubewell. Hence for the above, it can not be said that the character of Brij Pal Singh was such that he could not be said to be a responsible person whose sworn testimony could not be relied upon.
17. The trial judge further mentioned that PW 2 Harvir Singh and PW 3 Tejvir Singh were their own persons as whenever Brij Pal Singh or any member of his family or of the family of Jaswant Singh got involved in any case Harvir Singh and Tejvir Singh stood surety for them. We have considered these facts carefully and cautiously and we are of the view that there is nothing wrong because if a person gets involved in some criminal proceedings and sureties have to be furnished for his bail the persons acquainted with him only would stand surety for him. It is a matter of common experience and knowledge that in villages generally there are party factions due to one reason or the other and the persons acquainted with each other share the problems of each other mutually. This is the way the rural life goes on.
18. The trial judge also doubted the credibility of PW 2 Harvir Singh as admittedly he was an eye witness in the murder case of the village pradhan who was murdered in the year 1974 and again he appeared as an eye witness in the instant murder case. It may be just by chance that a person resident of the same village witnessed two murders. As a man of conscience and character he should appear as a witness in the murder case if he witnessed the murder or was acquainted with any fact relating thereto. If a murder case in which he had appeared as a witness ended in acquittal and he appeared as an eye witness after 6-7 years in another murder case it would not be justified to draw a presumption that he is not a reliable person and his testimony should be disbelieved only for that reason.
19. The trial judge disbelieved the testimony of PW 3 Tejvir Singh on the ground that admittedly Satvir Singh son of Jaswant Singh and this witness Tejvir Singh studied together in S.D.L. College Muzaffar Nagar and they were class fellows in B.A. and Brij Pal Singh also used to study in that very college. He also observed that Karan Singh, uncle of Tejvir Singh (PW 3) had quarrel with one Bhim and Pratap and in that case Jaswant Singh, father of Satvir Singh stood as a witness in favour of Karan Singh and therefore Tejvir Singh appeared as a witness in this case against Ram Pal and Ram Sharan prosecuted for the murder of Birbal Singh, brother of Jaswant Singh. In our view we can not go by these considerations in believing or disbelieving the testimony of a witness. By these facts we conclude only this much that this witness should be treated as a partisan witness whose testimony has to be scrutinized with care and caution.
20. The trial judge also doubted the presence of PW 3 Tejvir Singh at the scene of occurrence as he stated that at that time he was going to the field situate at a short distance from the scene of occurrence for cutting fodder as he had taken that field from Nain Singh on batai whereas DW 1 Nain Singh stated that he had never given that field to Tejvir Singh on batai. However this witness Nain Singh was given a suggestion in his cross-examination that daughter of his cousin brother and real sister of accused Ram Pal got married in one and the same family at village Narsan, District Saharanpur which he could not deny. He only expressed ignorance stating that he did not know if daughter of his cousin brother and real sister of accused Ram Pal were married in one and the same family at village Narsan, District Saharanpur. It may be noted here that no question regarding this fact was put up by the defence counsel to PW 3 Tejvir Singh in his cross-examination. Hence the testimony of DW 1 Nain Singh is no better than a got up witness as he might be denying having given that field to Tejvir Singh on batai under the influence of accused Ram Pal. Moreover, the presence of a witness at the scene of occurrence can well be tested in his cross-examination. If he has withstood the test of cross-examination firmly and his credibility has not been impaired in his cross-examination his statement will have corroborative value otherwise not.
21. Learned counsel for the accused respondents vehemently argued that PW 1 Brij Pal Singh, the first informant did not mention the incident of exchange of hot words between his father Birbal on the one hand and the accused on the other and the threat extended by the latter to the former at the tubewell two days prior to the occurrence and had that incident taken place it must have found mention in the FIR. No doubt, this fact is not mentioned in the FIR. But the accused respondents can not score any point on this count nor this omission is fatal to the prosecution case because the defence counsel failed to put the same to PW 1 Brij Pal Singh in his cross-examination and he had no opportunity to explain the same. Moreover, Birbal Singh father of Brij Pal Singh was murdered at about 8:30 a.m. and soon thereafter he went to the village and scribed report of the occurrence himself and then went to the police station Titavi situate at a distance of six miles from the place of occurrence and handed over written report of the occurrence to the police there at 10:30 a.m. The said fact might have been omitted due to mental indisposition of Brij Pal Singh on account of sudden death of his father Birbal who was murdered by his real nephews.
22. Learned counsel for the accused respondents further argued that the police officer who drew inquest on the dead body of Birbal mentioned in the inquest report that there were some abrasions etc at his right cheek, right hand and right clavicle but these injuries are not mentioned in the post mortem report. PW 4 Dr S.K. Verma who conducted autopsy on the dead body categorically stated that he did not find any such injury on right hand, neck etc and he also marked the said fact on photo lash at the time of post mortem. Possibility can not be ruled out that light abrasions might be visible due to falling of the victim on grit, pebbles or friction with sugarcane plants at the time of inquest. The fact remains that the victim died due to ante mortem firearm injuries sustained by him and inconsistency regarding minor injuries which were of insignificant nature such as abrasion etc on right hand, neck etc would not go to effect the prosecution case adversely. The said argument advanced by the learned counsel for the accused respondents lacks merit and is therefore rejected.
23. It has also been argued by the learned counsel for the accused respondents that since the deceased being a well off man was not putting on undergarments and shoes it appears that the occurrence took place early in the morning when he might have gone for passing faeces. This argument advanced by the learned counsel is totally misconceived. According to the medical evidence, the doctor conducting autopsy on the dead body mentioned in the post mortem report that stomach contained 4 oz semi digested fluid. PW 1 Brij Pal Singh son of the deceased stated in his cross-examination that his father Birbal had taken something in food about one and a half hour before proceeding from the house for the market. It goes to show that the incident took place at the time alleged by the prosecution. Regarding the apparel put on by the victim at the time of his murder, it may be mentioned that the incident took place in the month of June and it depends upon the personal habits of a person as to how he used to dress up and maintain himself.
24. Learned counsel for the accused respondents laid much emphasis upon the fact that since all the three eye witnesses examined by the prosecution are interested and partisan witnesses no reliance should be placed on their testimony. No doubt, PW 1 Brij Pal Singh being son of the deceased is an interested witness and PW 2 Harvir Singh and PW 3 Tejvir Singh too can not be termed to be impartial witnesses being associated with the family of Birbal Singh and Jaswant Singh. But we have scrutinized their testimony with great care and caution. Having done so, we find them to be trustworthy. Presence of Brij Pal Singh can not be doubted on the spot as he lodged FIR of the occurrence at the police station promptly. Names of witnesses Harvir Singh (PW 2) and Tejvir Singh (PW 3) find mention in the FIR of the occurrence lodged promptly at the police station by Brij Pal Singh, son of the deceased. All these three eye witnesses withstood their cross-examination firmly and nothing tangible could be brought on the record in their cross-examination to doubt their credibility. The place of occurrence is fixed up by the recovery of blood, empty cartridge, wads etc from the scene of occurrence. The medical evidence leaves no room for doubt as to the factum of occurrence and the prosecution case with regard to its time and the weapons used in the assault also received corroboration from it. Evidence of the Ballistic Expert also lent corroboration to the ocular testimony that Ram Pal fired at Birbal causing injuries to him with his gun. Thus we are of the view that all the three eye witnesses have given a truthful and honest account of the occurrence witnessed by them.
25. For the foregoing discussion, we are of the view that since the impugned judgment is unreasonable as relevant and convincing materials have been unjustifiably eliminated resulting in miscarriage of justice and the trial judge has recorded acquittal of the accused by giving undue importance to minor discrepancies taking a suspicious view of the evidence based on conjectures and surmises the impugned judgment can not be maintained in law and is liable to be set aside.
26. The appeal is allowed and the impugned judgment acquitting the accused is hereby set aside. Accused Ram Sharan is hereby held guilty of the charge levelled against him under Section 302 IPC and accused Ram Pal of an offence punishable under Section 302 read with Section 34 IPC and each of them is sentenced to imprisonment for life thereunder. They are on bail. CJM Muzaffar Nagar is directed to get both the accused arrested and lodged them in jail to serve out the sentence imposed upon them.
27. Let judgment be certified to the court below. Record of the case be transmitted to the court concerned immediately for necessary compliance under intimation to this court within two months.