Judgment:
Gopal Krishan Sharma, J.
1. Prithviraj PW 1 lodged a written report Ex. P 1 at Police Station, Rajakhera on 10-6-1981 at 5 p.m. This report was with regard to an incident alleged to have taken place at 9 a.m. on the same date. He has alleged that he and Dalel Singh along with deceased Jandel Singh were going to village Dabera to attend some marriage function. When they reached the place known as 'Mahadev Badi' after covering a distance of about 2 miles, the appellants along with Atwal, Kamod and Purshottam were sitting at some distance under a tree. Prahalad Singh had 'pachfera', Balveer Singh had 12-bore-gun and Gulab Singh had a gun the others were armed with lathies. All the accused-appellants told Jandel Singh that he will not be escaped today because his father had given shelter to Sobren Singh and his family members. It was also alleged in the report that the person who will help their enemies, will not be rescued. Prahalad fired with 'pachfera' at Jandel Singh, Balveer Singh fired with 12-bore-gun at him. Jandel Singh fell down on the ground. Gulab Singh also fired with his gun. Seeing this they ran away and came to village and informed the villagers, at this 50-60 persons and some R.A.C. personnel went at the spot and brought the dead bodies in the village at 1 O'clock in the noon. Then the dead body was taken in a tractor to the Police Station, Rajakhera. On this report case under Sections 147, 148, 149 and 302 IPC was registered and investigation was started.
2. Raghuveer Singh PW 9, SHO went to the spot and prepared siteplan Ex. P 2. He recovered from the spot one bullet and dat. He also seized blood stained earth and plain earth from the spot. He also seized blood stained clothes of the deceased and prepared the Panchanama of the dead body. After completing usual investigation the Police submitted challan against 8 persons. Amongst these accused persons Atwal, Kamod and Purshottam were children and hence their case was separated and they were sent to the Childrens' Court for trial. Thus the learned Additional SessionsJudge started trial against 5 accused-appellants.
3. The Additional Sessions Judge framed charges against the appellants Gulab Singh and Prahalad Singh under Sections 148, 302 IPC and other accused persons under Sections 148, 302/149 IPC. The accused persons pleaded not guilty and claimed trial.
4. The prosecution had examined 10 witnesses to establish its case. No defence was produced by the accused persons. The learned Additional Sessions Judge after completing trial found accused Prahalad Singh and Balveer Singh guilty of the offence under Section 302 IPC and sentenced them to life imprisonment and a fine of Rs. 200/- in default of payment of fine, fo further undergo one year's SI. The Additional Sessions Judge found the accused persons Chob Singh, Bhagwan Singh and Gulab Singh guilty of the offence under Section 302 read with 149 and sentenced them to life imprisonment and a fine of Rs. 200/- each, in default of payment of fine, to further undergo one year's S.I. All the appellants were also found guilty under Section 148 and each has been sentenced to two years' rigorous imprisonment and a fine of Rs. 50/-, in default of payment of fine, to further undergo 3 months' S.I. All the sentences were ordered to run concurrently.
5. It has not been disputed by both the learned Counsels that Jandel Singh died on account of gun-shot. Doctor N.S. Sarin PW 10 examined the injuries of Jandel Singh and has also conducted the post mortem on the body. According to the doctor's statement and post mortem report, Jandel Singh had 6 gun-shot wounds and the cause of death was due to gun-shot injuries to the vital internal parts of the body causing haemorrhage, shock and death. Thus it is clear that Jandel Singh died on account of injuries received by gun-shot and hence his death was homicidal in nature.
6. The learned Counsel for the appellant has argued that the accused appellants have been falsely implicated in this case. On account of enmity all the relatives and male-members of the family have been made accused in this case. Bhagwan Singh had 4 sons and he and his all sons have been made accused in this case. Jawala Singh the maternal-uncle of the accused Bhagwan Singh had 3 sons and all the 3 sons have been made accused in this case. Out of these 8 persons, three are children and five are major male-members. Thus intentionally all the male-members of the family of Bhagwan Singh and Jwala Singh have been implicated as accused in this case.
7. It was argued by the learned Counsel for the appellants that Prithviraj who is the author of the report Ex. P 1 has not supported the prosecution story. He has denied the allegations made in the report Ex. P 2. So Prithviraj is hostile to the prosecution case. The another eye-witness is Dalel Singh PW 2. This witness is relative to the deceased Jandel Singh. Though Dalel Singh had denied to have any relation with the deceased but from the statement of Rajendra PW 6, it is clear that Dalel Singh is the cousin of deceased. So the statement of Dalel Singh is to be scrutinised cautiously. In this case Dalel Singh PW 2 remains the solitary eye-witness. The entire case depends on the testimony of this solitary witness Dalel Singh. The statement of solitary witness specially who is a related witness is to be examined cautiously. In the present case Dalel Singh PW 2 has contradicted his own Police statement Ex. D 1 and in the light of this aspect Dalel Singh is not a reliable witness and no conviction can be based on the testimony of such untrustworthy and unreliable witness.
8. We have considered the arguments advanced by both the learned Counsel. The learned Public Prosecutor has argued that the judgment of the learned trial Court Judge is correct and based on the evidence on record. There is no illegality in the finding of the trial Court. In this respect we have gone through the entire evidence in detail.
9. PW 1 Prithviraj is the informant who lodged the report Ex.P 1. He has stated that he, Jandel Singh and Dalel Singh were going towards Dabera village and when they reached near the Mahadev Badi Jandel Singh was going 15-20 paces ahead them. At that moment they heard cry from the bush that Jandel Singh is our enemy. He had established Sobren Singh in the village and while uttering these words three fire came from behind the bush which hit jandel Singh who fell down. He and Dalel Singh ran away towards village. He has stated that he did not see any body firing at that time. According to him three shots were fired. Thus this witness Prithviraj has not supported the prosecution case. He has denied to have seen any person firing at Jandel Singh. He was cross-examined by the learned Public Prosecutor and he has stated that in the report Ex.P 1 he had falsely mentioned that Prahalad, Balveer and Gulab Singh fired. So such witness cannot be relied at all. He does not support the prosecution case. On the other hand he demolishes complete story that the accused-appellants fired. No doubt fire was made, but who fired at Jandel Singh has not been proved by this witness. So he is of no help for the prosecution.
10. The another eye-witness is Dalel Singh PW 2. He has stated that he and Prithviraj were going to village Dabera. Jandel Singh was also going ahead. When they reached near Mahadev Badi he saw 8 persons sitting by the side of a bush He named all those 8 persons. It is further stated that the accused persons told that father of Jandel Singh has established the member of their enemies Sobren Singh, such he should not go alive. After this Prahalad and Balveer fired which hit Jandel Singh. He has not stated that Gulab Singh also fired at Jandel Singh. According to this witness two gun-shot were fired by Balveer Singh and one was fired by Prahalad.
11. According to Dalel Singh the case of Murdering Jandel Singh was that the father of Jandel has established family of Sobren Singh. So if there was any entity as alleged by the accused persons it was with the father of Jandel Singh. It is not the case of the prose cution that Jandel Singh had established the family of Sobren Singh Then it is not on the record as to when this family was established in the village. Even if we believe that the family of Sobren Singh was established, why the revenge was not taken by the accused persons till this date. If they were annoyed with any body then he was the father of Jandel Singh and not Jandel Singh himself. If any revenge was to be taken, it was with the father of Jandel. Therefore, the motive that they took revenge from Jandel Singh for the enmity of his father with the accused persons is not believable. We see no reason that the accused persons will take revenge and murder Jandel Singh for the enmity with the father of Jandel Singh. We have read the cross examination of Dalel Singh PW 2. This witness was examined by the police under Section 161 Cr.PC and his statement is Ex.D 1. He was confronted with portions A to B, C to D and E to F of Ex.D 1 and he has denied to have given those portions. The SHO has proved that he recorded the statement Ex. D 1 correctly as given by Dalel Singh PW 2. Thus this witness has contradicted this own police statement Ex.D 1. How to believe such unreliable witness who says something during investigation to the police and narrates something contrary to that statement in the Court. He is the only solitary witness of this incident and in view of his contradictory statement, we are of this opinion that Dalel Singh PW 2 is not a witness of sterling worth. He is unreliable and untrustworthy witness. He is interested witness being related to deceased. A person who can give this false statement and denies his relationship with the deceased, it is most unsafe to place reliance on such witness. The learned Sessions Judge has committed an error in placing reliance on the testimony of Dalel Singh. He did not appreciate the evidence in the right perspective manner.
12. We have perused the site-plan Ex.P 2 and in the light of this site-plan we have read the statement of Dalel Singh PW 2. It is in the evidence that there were, number of drains on the road, there were number of 'jhadies' of fairly height. The SHO Raghuveer Singh PW 9, in the cross-examination has admitted that at the spot there were number of curves in the jungle and number of pits and bushes which were dense and high. He has also admitted that there were such pits and curbs that a person even standing could not be visible. He has stated that the place where these witnesses were standing were able to see the place where the deceased Dalel Singh was lying but he has stated that the person who is behind the bushes could not be seen by these witnesses from the place where they were standing. Therefore, the statement of Dalel Singh PW 2 that he saw 8 persons sitting beside the bush is a false statement. He could not have seen the persons sitting behind the bush and he could not have seen who fired from behind the bush. Therefore, the statement of Dalel Singh is a false statement. He being related to deceased and they wanted to implicate all the family members so the accused-appellants have been named in the statement. On this aspect also, we are of the opinion that Dalai Singh PW 2 is a false and forged witness and no reliance can be placed on his testimony.
13. No gun has been recovered by the police from the possession of the accused persons. The gun and the bullet which were recovered from the spot have not been sent to forensic science laboratory for testimony. There is no proof on the record that the bullet which was found at the spot was fired from the gun belonging to the accused persons. This is also a lacuna in the prosecution case. They should have proved that this bullet was fired from the gun of the accused persons.
14. In view of our discussion, we are of the opinion that the learned Sessions Judge has commited error in believing the solitary statement of Dalel Singh PW 2. He is unreliable and untrust-worthy witness and no reliance can be placed on his testimony. The conviction which has been based on the solitary statement of this witness is bad in law and cannot be sustained.
15. As a result, the appeal is accepted. The accused persons Prahalad and Balveer Singh have not been found guilty of the offence under Section 302 and 148 IPC and both are acquitted from these offences. Both the accused-appellants are in jail. They shall be released forthwith, if not needed in any other case.
16. The accused-appellants Bhagwan Singh Chob Singh and Gulab Singh are not found guilty of the offence under Section 302 read with Sections 149 and 148 IPC and all are acquitted from these offences. These appellant are on bail. They need not surrender and their bail bonds are cancelled.