JUDGMENT 1. - The appellants Haroo Singh and Ladka Singh @ Gurdeep Singh were indicted before the learned Sessions Judge, Alwar in Sessions Case No. 26/1995 for having committed Judge, found them guilty under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life.Against the aforesaid judgment that the present action for filing the instant appeal has been resorted to by the appellants. 2. The prosecution case as unfolded during the trial is that Sunder Singh, RW. 7 verbally informed Police Station, Ramgarh on June 29, 1995 around 11.45 p.m. that the appellants namely; Haroo Singh and Ladka Singh @ Gurdeep Singh struck blows with lathies on the head of his son Deewan Singh. Deewan Singh and he was admitted to the Hospital. Police Station, Ramgarh, registered the first information report No. 22/1995 under Sections 341, 323 and 307 IPC and the investigation commenced. After the death of Deewan Singh on January 30, 1995 the case was converted in to Section 302 Indian Penal Code In the course of investigation necessary memos in regard to site plan, inquest report, arrest of the appellants, recovery' of weapons, etc. were drawn. Autopsy on the dead body was conducted and the statements of witnesses under Section 161 were recorded. On conclusion of investigation charge- sheet was Lald and in the due course case came up for trial before the learned Sessions Judge, Alwar. Charges under Section 302 read with Section 34 IPC were framed. The appellants denied the charges and claimed trial. The prosecution examined as many as ten witnesses in support of its case and got exhibited thirteen documents. In the statements recorded under Section 313 Cr.P.C. the appellants claimed innocence. No evidence however, in the defence was examined. The learned trial court on hearing the final submissions, convicted and sentenced the appellants as indicated herein above. 3. We have heard Mr. V.R. Bajwa, learned counsel for the appellants and Mr. S.S. Rathore, learned PR for the State and carefully scrutinised the material on record. 4. The prosecution case rests on the testimony of only eye witness of the incident viz. Jeet Singh (P.W. 2). Learned counsel for the appellants vehemently criticised the testimony of Jeet Singh RW. We have heard Mr. V.R. Bajwa, learned counsel for the appellants and Mr. S.S. Rathore, learned PR for the State and carefully scrutinised the material on record. 4. The prosecution case rests on the testimony of only eye witness of the incident viz. Jeet Singh (P.W. 2). Learned counsel for the appellants vehemently criticised the testimony of Jeet Singh RW. 2 as under: (i) Presence of Jeet Singh a chance witness at the time of occurrence was highly un- natural, he was the resident of another Village Godhawas which was four furlong away from the place of incident; (ii) Jeet Singh was partisan witness as Diwan Singh was son of his maternal uncle. This fact was admitted by him in the cross- examination; (iii) Jeet Singh improved his version at the trial and disowned material portion of his police statement; and (iv) Jeet Singh was a got up witness. His statement was recorded on January 30, 1995 i.e. next day whereas he was available to the I.O. on January 29,1995. 5. Learned counsel for the appellants further canvassed that no independent person from the vicinity of the place of occurrence was associated by the I.O. and this was a serious infirmity. 6. Learned counsel further canvassed that the lathies allegedly recovered at the instance of the appellants were not found stained with blood and the prosecution failed to connect the lathis with the crime. Reliance of was placed on Deepak Kumar v. Ravi Virmani and Anr. JT 2002(1) SC 555. State of U.P. v. Bhagwan & Ors. 1997(2) Supreme (Cr.) 216. 7. Per contra Mr. S.S. Rathore, learned P.P. supported the impugned judgment and canvassed that the presence of Jeet Singh P.W. 2 was quite natural at the time of the occurrence and his testimony was rightly relied upon by the trial Court. 8. In view of submissions advanced before us we proceed to examine the credibility of Jeet Singh. In his deposition Jeet Singh, RW. 2 stated that he had gone to one Bachchan Singh and from there he went to Village Madhapura to pay homage at Gurudwara and then decided to meet Deewan Singh. He had seen the appellants beating up Deewan Singh. Appellant Ladka Singh was armed with Salotara whereas appellant Haroo Singh was having a small lathi and they both then struck blows on the head of Deewan Singh. He had seen the appellants beating up Deewan Singh. Appellant Ladka Singh was armed with Salotara whereas appellant Haroo Singh was having a small lathi and they both then struck blows on the head of Deewan Singh. When he (Jeet Singh) attempted to intervene he was also threatened, he then went to Godhawas to call his maternal uncle. Thereafter, Sunder Singh and Jaswant Singh rushed to the spot and Deewan Singh was taken to the house of Bachchan Singh on cot and then he was removed to Hospital Ramgarh where Deewan Singh died next day at 4.00 a.m. In the cross- examination, Jeet Singh admitted that Deewan Singh was son of his maternai uncle and village Godhawas was at a distance of 5 to 6 big has from village Madhapura. He further deposed that he did not to go lodge the report but went to his house. He disowned certain portion of his police statement (Ex.D1). 9. A look at the testimony of Jeet Singh demonstrates that he was a chance witness and closely related to the deceased. The I.O. did not make effort to associate independent witness from the vicinity of the place of occurrence. In Deepak Kumar v. Ravi Virmani and Anr. (Supra), Their Lordships of the Supreme Court in a somewhat similar situation refused to place reliance on the testimony of partisan witness. It was observed that "we once again remind ourselves the absence of any independent witness and the entire prosecutions case is based upon the evidence of these two brothers, Deepak and Sanjay. Non- avaiiability of independent witness thus creature an uncanny feeling as to why this avoidance...". 10. In the case on hand as is evident from the site plan (Ex.R 5) that near the place of occurrence their existed a Kachcha Kotha and Bada of Milap Singh. Gurudwara is also existed nearby the house of Pooran Singh and the house of Pooran Singh also situated in front of Gurudwara. No independent witness despite availability was examined by the I.O. and only a chance witness Jeet Singh was associated who too had not gone to the Police Station to lodge the report. As has been admitted by him in his statement that he did not go to the Police Station but went direct to his house and came only after the death of Deewan Singh. As has been admitted by him in his statement that he did not go to the Police Station but went direct to his house and came only after the death of Deewan Singh. Recording of statement of Jeet Singh by I.O. on the next day of the date of occurrence creates a serious doubt about his presence at the time of occurrence. In State of U.P v. Bhagwan & Ors. (Supra) it was indicated that non- recording of the statement of the witness on the day of occurrence despite sufficient time creates doubt about the testimony of the witness. 11. It is well settled that conviction can be based on the testimony of a Single witness if he is found reliable. Proof of any fact does not depend on the quantity of the witness as is envisaged by Section 134 of the Evidence Act. This general Rule enshrined the well recognised maxim "Evidence is weighed and not counted" Hon'ble Supreme Court in Ghevar Chand v. State AIR 1957 SC 134 indicated that the Court is concerned with the quality and not the quantity of the evidence to prove a fact. 12. For the reasons aforementioned we find the presence of Jeet Singh (PW 2) at the time of incident quite unnatural. Jeet Singh, in our opinion, is wholly unreliable witness and the learned trial Judge has committed illegality in convicting the appellants on the basis of the evidence of Jeet Singh. 13. There are other infirmities also in the prosecution case. Lathis so recovered at the instance of the appellants were not found stained with blood, no blood was seen at the place of incident and independent witnesses despite their availability were not associated by the I.O. All this creates serious doubt in the truth fullness of the prosecution case and we find that the prosecution has failed to established the charge under Section 302 read with Section 34 IPC beyond reasonable doubt against the appellants. 14. In the result, we allow the appeal and set- aside the conviction and sentence of the appellants Haroo Singh and Ladka Singh @ Gurdeep Singh under Section 302 read with Section 34 IPC and they shall stand acquitted of the said charge. The accused appellants are in custody, they shall be released forthwith, if not, required in any other case.Appeal allowed. *******