Judgment A.S.Garg, J. 1. On the night intervening 26th/27th March, 1994, around 4.00 A.M., Devinder Singh P.W1 and Kaur Singh P.W2 both resident of village Ghuda were coming back after arranging the labourers for harvesting of rabi crop and when they reached near the main gate of the house of Mal Singh appellant, they heard some cries and shrieks of Nirmaljit Kaur, a young daughter of Mal Singh saying "Na Maro Na Maro" (Dont kill Dont Kill). They also allegedly heard that Mal Singh, Bakhtaur Singh, Surjan Singh, Kartar Singh and Gurbax Singh all were telling the victim that because of her marriage with Lachhman Singh P.W3, the complainant, who was a person from lower caste, they have not been able to show their faces in the village. After some time the voice of cries and shrieks went into silence. 2. Lachhman Singh P.W3 resident of village Maluka, belonged to a Scheduled Caste tribe, who was working as a Teacher had developed intimacy with Nirmaljit Kaur and cutting short the entire background and story they allegedly married at New Delhi on 10.7.1991 at Arya Samaj Mandir, a temple in Delhi with the help of Pt. Ram Subhag Shashtri P.W5. Marriage certificates were issued by Pt. Ram Subhag Shashtri. So Lachhman Singh made an application Ex. PB before the Superintendent of Police, Bathinda that Nirmaljit Kaur had met him on the evening of 26.3.1994 at Bus Stand Baja Khana and she had promised that she was going to return but on the appointed date she did not come and he apprehended that Nirmaljit Kaur had been killed by her parents and brothers. This letter set the machinery of law into motion. Inspector Ram Parkash P.W9, who was the S.H.O. at the relevant time, after making his endorsement Ex. PB/1 sent the same for registration of a case and on its basis formal F.I.R. Ex. PB/3 was recorded on 3.4.1994 at 8.30 P.M. The special report reached the learned Ilaqa Magistrate at 11.00 P.M. on the same day. It was revealed during the investigation that the body of Nirmaljit Kaur had been cremated. On 4.4.1994, Inspector Ram Parkash along with other police officials went to village Ghudha and went to the place of occurrence i.e. the house of Mal Singh appellant. He prepared rough site plan Ex. PF of the scene of occurrence. It was revealed during the investigation that the body of Nirmaljit Kaur had been cremated. On 4.4.1994, Inspector Ram Parkash along with other police officials went to village Ghudha and went to the place of occurrence i.e. the house of Mal Singh appellant. He prepared rough site plan Ex. PF of the scene of occurrence. He also took into possession the ashes and bones from the cremation ground vide memo Ex. PG. Thereafter the said Inspector went to the Gurdwara of the village and Harnek Singh Granthi produced before him one bag containing the remains of the dead body of Nirmaljit Kaur which were taken into possession vide memo Ex. PH. On 6.4.1994, marriage certificate was produced by Lachhman Singh which was taken into possession vide memo Ex. PC. On 17.4.1994, he arrested Gurbax Singh alias Ghurka accused. On 27.4.1994 Surjan Singh accused was arrested. Mal Singh and Kartar Singh appellants were produced by Gurnam Singh Ex. President, Municipal Committee, Jaitu before him on 27.4.1994. In pursuance of his disclosure statement Ex. PK Kartar Singh got recovered two small ear rings belonging to Nirmaljit Kaur which were taken into possession vide memo Ex.PL. After completion of the investigation, the accused were put to trial. 3. Mr. Jagpal Singh Dalai PW1O, Professor and Head of Forensic Medicine and State-Medico Legal Advisor Govt. of Punjab, Guru Gobind Singh Medical College, Faridkot, made the following observations : (1) Packet No. 1 contained about 1 Kg. ashes and coal. The ashes were brown in colour and coal was blackish, brittle and that of woods. (2) Packet No. 2 contained pieces of burnt bones as described below : (i) About 20 pieces of human skull the ends show serrated margins on both table, however, one piece has serrated margins only externally while its inner table was without serration. The bones were thin. (ii) 12 pieces from shafts of long bones. (iii) Upper end of radius with a portion of shaft attached to it. The end was small and fused. (iv) Both ends of fibula bone with portion of shaft attached to it. The ends were fused. (v) Part of isoclinal tuberosity fused. (vi) About 100 pieces, very small of bones, individually unidentified. In the opinion of Mr. (iii) Upper end of radius with a portion of shaft attached to it. The end was small and fused. (iv) Both ends of fibula bone with portion of shaft attached to it. The ends were fused. (v) Part of isoclinal tuberosity fused. (vi) About 100 pieces, very small of bones, individually unidentified. In the opinion of Mr. Dalai, the identifiable bones were that of a human being; the bones could belong to a female the age of the person to which these bones belong could be about 30 years and no cause of death could be given as the burnt pieces of bone were too small. 4 During the trial it was being claimed by the appellants that Nirmaljit Kaur died of some ailment and the entire village attended the cremation of Bhog ceremony. Sukhdev Singh DW1, an agriculturist of the same village deposed that the deceased died a natural death and the people from the village attended the ceremonies without any grumble. The learned trial Judge convicted Mal Singh, Bakhtaur Singh and Kartar Singh appellants under Section 302 read with Section 34 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- each. In default of payment of fine each of them was ordered to undergo further rigorous imprisonment for one month. All of them were also convicted under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- each. In default of payment of fine each of them was ordered to undergo further rigorous imprisonment for one month. The substantive sentences of imprisonment were ordered to run concurrently. 5. Aggrieved against their conviction and sentence Bakhtaur Singh filed Crl. A. No. 541-DB of 2000 whereas Mal Singh and Kartar Singh filed Crl. A. No. 562-DB of 2000 and the same are being disposed of by this judgment. 6. The main argument of the teamed counsel for the appellants while assailing the conviction and sentence has been that the two witnesses Devinder Singh P.W1 and Kaur Singh P.W2 are of such a character that they are not believable. According to him, it was totally unsafe to convict the appellants on their testimony which had, according to him, resulted into miscarriage of justice. According to him, it was totally unsafe to convict the appellants on their testimony which had, according to him, resulted into miscarriage of justice. Devinder Singh P.W.1 has admitted in cross-examination that he was tried in a case for allegedly outraging the modesty of a woman. He was involved in the case under the Indian Arms Act. Sukhdev Singh son of Gurbax Singh, cousin of Mal Singh appellant was a witness against him in the Arms Act case. There was theft case against him for stealing cotton crop. Members of his family were also involved in the theft case. In another case of Arms Act appellant Mal Singh was a witness against him. He was challaned under Section 107/151 of the Code of Criminal Procedure on a complaint made by Bakhtaur Singh appellant son of Mal Singh appellant. He also admitted that his brother Nardev Singh was a complainant in a case against Kartar Singh appellant and another. So this witness does appear to be having a normal background. Rather he has doubtful credentials behind him specifically when he had been motivated against the family of the appellants that he had been a witness against some of them and had been himself facing various criminal charges. His antecedents do not project him to be an unmotivated witness. Then adding to all this admittedly he did not report the matter to the police. If he had heard the shrieks and cries of the deceased and then the cremation taking place, he could have disclosed all this to the people in the village and the police easily but he did not do so. He does not advance any reason for keeping a silence for 9 days that he made a statement to the police on 4.4.1994. Kaur Singh P.W.2 is no less motivated against the appellants. He stated in cross- examination that he had no land in the village. He cultivated the land of Devinder Singh P.W.1 on Batai. He also admitted that he contested an election of Panchayat against Bakhtaur Singh appellant and this witness was defeated in the election. He also admitted that Mal Singh appellant was aged about 80 years. He also kept absolute silence for a long time. He has been seeri of Devinder Singh PW and had election enmity against the appellants. He also admitted that he contested an election of Panchayat against Bakhtaur Singh appellant and this witness was defeated in the election. He also admitted that Mal Singh appellant was aged about 80 years. He also kept absolute silence for a long time. He has been seeri of Devinder Singh PW and had election enmity against the appellants. The conduct of these two witnesses for remaining silent for a very long time speaks of their mala fide and motivation to become witnesses. 7. There is no qualification any where which prescribes as to who can become a witness of an occurrence. It is immaterial that the witness is an educated one or not an educated one or is a good or a bad person. However, a witness who can be relied upon must be an impartial one to the party against whom he deposes and may not have any motive to do so and is naturally found to be present on the scene of occurrence. He is not supposed to be a witness being procured or introduced one. Therefore, the actual purpose of presence and actual presence of a witness and ones truthfulness makes a witness to be relied upon. In the case in hand, Devinder Singh P.W1 that he is facing various criminal trials, of course, reflects on his conduct but his closeness to Kaur Singh P.W2 and the latter having contested a Panchayat election against one of the appellants Bakhtaur Singh make their testimony certainly doubtful. They have not been able to explain their purpose of presence at the spot at 4.00 A.M. or so. 8. These two witnesses claimed that they identified the voice of the appellants. They have not claimed or asserted that they had any special means of knowledge to identify the voices of each of the appellants. When such a crime is committed and allegedly being heard by these witnesses, normally the assailants would not talk so loudly that the people out side on the road could hear the entire version. Then how these two witnesses could hear the voices of the five accused. It is also not prima facie believable and is the outcome of their enmity with the appellants. 9. Lachhman Singh P.W3 has ultimately resiled and did not press his allegations made in the complainant Ex. PB. Then how these two witnesses could hear the voices of the five accused. It is also not prima facie believable and is the outcome of their enmity with the appellants. 9. Lachhman Singh P.W3 has ultimately resiled and did not press his allegations made in the complainant Ex. PB. He claimed that he was never told by Nirmaljit Kaur that her parents were against their marriage. The betrayal of Lachhman Singh vis-a-vis Nirmaljit Kaur goes to the extent that the witness states in the last line of his cross-examination that Nirmaljit Kaur was a heart patient and was keeping indifferent health. 10. Mal Singh is father of Nirmaljit Kaur while Bakhtaur Singh and Kartar Singh are her real brothers while the other two accused, who have since been acquitted by the learned trial Judge, are relations. Unfortunately, the dead body of the deceased could not be taken into possession by the Investigating Officer. She might have been done to death by the appellants but apparently the statements of Devinder Singh and Kaur Singh cannot inspire confidence on the version they stated in Court. The Investigating Officer also did not collect any sign of violence in the house of the appellants nor could collect any other evidence which could lead to a clear case of involvement of the appellants in the death of the deceased. Without such clear evidence it is difficult to sustain the conviction of the appellants. The appellants or some of the appellants might be having motive not to send a girl of their family of Jat Sikh to a boy of Scheduled Caste but exactly it cannot be said as to who were involved in this crime. Any moral presumption or assumption that the appellants alone could commit such a crime would not be enough to convict the appellants. So for want of adequate evidence we are of the considered view that the conviction of appellants could not be maintained. 11. In view of the above discussion, both Crl.A.No. 541-DB of 2000 and Crl.A.No. 562-DB of 2000 are allowed and the appellants are acquitted of the charges framed against them.