JUDGMENT 1. The present appeal is filed by one of the two accused persons Harpal Singh @ Harpal the other accused person being Kalu Singh @ Kalia and arising of judgment of Addl. Sessions Judge (Fast Track), Hanumangarh in Sessions Case No. 66/01 dated 10.09.2001. 2. The prosecution was initiated on the basis of First Information Report lodged by Magghar Singh on 16.10.98 at Police Station Hanumangarh Junction. In the report it is submitted that his son Gurucharan Singh lives separately. It was further alleged inter alia that his son Gursharan Singh had gone to the field on 15.10.98 at about 4.00 p.m. and he had not returned home whole night. At about 8.00 a.m. on 16.10.98 wife of Prem Singh Bavari came to their residence and informed that at the outskirts of the village, near the liquor shop, in the field of Kripa Ram Bavari, a corpus is lying. Village Kotwal Dharma is sitting there. He thought that his son had not come whole night, therefore, he suspected that the corpus may not be of his son so he went to the place of occurrence along with Gurdeo Singh and Gurudayal Singh his relatives. He observed that the corpus belongs to his son. There were injuries on the neck, face and on other parts of the body. Injuries were inflicted by a sharp edged weapon. It was a case of murder. When he inquired from the person, who attends the liquor shop, he informed that last night Gurucharan Singh had liquor along with Harpal Singh and Kalu Singh. Few days before this incident, Harmail Singh had entered into a quarrel with Harpal Singh and Kalu Singh. Harmail Singh was friend of his son Gurucharan Singh. Therefore, he suspect that present murder is committed by these two accused persons. 3. During the course of investigation accused were arrested and their clothes were seized and axe was recovered from a guttor point on the information and at the instance of the accused by Magghar Singh. After completion of the investigation, charge sheet was filed in the court of Chief Judicial Magistrate, Hanumangarh who in turn committed it to the Court of Sessions, Hanumangarh. From there, the matter was made over to the trial court for trial. Charges were framed against the accused persons under Section 302 read with Section 34 I.PC. Accused denied the charges and claimed trial. From there, the matter was made over to the trial court for trial. Charges were framed against the accused persons under Section 302 read with Section 34 I.PC. Accused denied the charges and claimed trial. At the trial, prosecution examined 23 witnesses and tendered more than 35 documents. In defence, 12 documents were got exhibited. The accused were examined under Section 313, Cr.PC. they pleaded ignorance. After recording the evidence arguments were heard and the trial court came to the conclusion that the accused persons were responsible for causing the death of Gurucharan Singh and hence convicted both the accused persons under Section 302 r.w. Section 34. Both the accused persons were sentenced to life imprisonment and fine of Rs.100/- each. Aggrieved by the conviction and sentence the accused persons have filed an appeal before this court. 4. Learned Amicus curiae urging on behalf of the accused submitted that it is a case in which there was no witness when the incident happened At the time when the occurrence took place no one was to be in the field. The only eye-witness produced is Harmail Singh P.W.3. He is not a witness of any worth. The trial court has based its findings on the testimony of this witness. It is worthwhile to note that this was the person because of whom the case of the prosecution started. It is alleged that one month before the incident, Harmail Singh was given thrashing by the accused persons. On the fateful day, both the accused persons were taking liquor at the liquor vending shop. Deceased and this witness was also drinking there. At that time Harmail Singh PW.3 and Kalu entered into arguments. The accused persons threatened the deceased. At that time according to this witness Kalu went to the bartender and demanded some weapon like danda, gandasi or pistol. The bartender said that he does not have anyone of them. 5. While Kalu was demanding weapon from the bar tender, this witness advised Gurucharan Singh that there is an opportunity of some conflict arising therefore, they should leave. At that time, three persons came on bicycle names Malkeet Singh. Sukhdev Singh @ Faggu and Gurudeo Singh @ Gevia. Gurdeo Singh and Malkeet Singh came to the bar and took liquor. Sukhdev Singh started walking, since he is a premi therefore, he does not drink. At that time, three persons came on bicycle names Malkeet Singh. Sukhdev Singh @ Faggu and Gurudeo Singh @ Gevia. Gurdeo Singh and Malkeet Singh came to the bar and took liquor. Sukhdev Singh started walking, since he is a premi therefore, he does not drink. While Sukhdev Singh was walking, there were four axes placed on the carrier of his bicycle. Both the accused persons went to Sukhdeo Singh and snatched one of the axe. After snatching the axe both the accused went to the field of Kripa Ram Bavri and concealed themselves in the cotton crop. At that time, he told Gurucharan Singh that they proceed to village which is at distance of three bighas far from the shop of liquor. 6. Harmail Singh RW.3 has further stated that when he was almost four fts. from Gurucharan Singh Kalu and Harpal came out from the cotton crop and persuaded Gurucharan Singh. Kalu gave an axe blow to Gurucharan. Gurucharan Singh fell down shouting 'Marta Marta'. This witness claimed that he had ran away 8-10 pawandas and concealed himself in the cotton crop. There was light in front of the liquor shop, therefore, he should see the entire incident in that light. First Kalu inflicted injuries and then Harpal Singh took the axe from Kalu and he inflicted injuries. From there accused went away and he kept himself concealed for one or one and half hour. 7. He did not disclose this fact to anybody. He went to Dhanni of his brother Om Prakash. Being afraid, he did not disclose this fact to anybody. He went to his tube well and slept there in room. Next morning at about 10-11 A.M. he went to the village and there he inquired. It is claimed by this witness that he for the first time disclosed the fact before the police officials who were present on the scene of occurrence. 8. In the cross examination of this witness he submitted that the person from whom Kalu accused snatched axe had not complained to him that his axe has been snatched. He also submitted that the person has not even complained to other companions who had gone to the liquor vendor shop, about snatching of the axe. This witness also admits that his brother's Dhanni is about 8-9 kms. away from the place of occurrence. He also submitted that the person has not even complained to other companions who had gone to the liquor vendor shop, about snatching of the axe. This witness also admits that his brother's Dhanni is about 8-9 kms. away from the place of occurrence. He is alleged to have gone at his brother's dhanni during the night. When he went to the Dhanni of his brother he had not disclosed this fact to his brother, sister-in-law, his nephews or to Mohan. After he woke up he reached the village about noon. 9. While he entered into village firstly he met Gurunam Singh who is not his relative. He did not disclose anything to Gurunam. Gurudyal Singh told him that Gurucharan Singh corpus is lying near liquor vendor shop then he asked him about the incident. He told that police and 200-300 people gathered at the place of occurrence He was also informed by Gurudayal Singh that somebody had killed Gurucharan Singh and villagers did not know about the accused. Then he along with Gurudayal Singh came to the place of occurrence. He met on his way about 300-400 people but he did not told anyone about the incident. His case is that he only informed to police officials and none else. 10. Criticizing the testimony of PW.3 Harmail Singh learned counsel appearing for the accused submitted hat testimony is of unconvincing nature It is full of such improbabilities. It is not possible to believe the story given by this witness. He was the person for whom the dispute arose in between the accused and himself. In turn, Gurucharan Singh intervened and had the worst of it. If at all, any harm was to be caused by the two accused then Harmail Singh could be the first person. If there was an opportunity of making any assault by the present accused. According to the witness Harmail Singh while he and deceased were taking liquor, they have sensed danger. Strangely having sensed danger, they did not make their escape good as fast as the danger required of them. If the danger was real then, Harmail Singh and the deceased would have left the bar immediately. If that would have happened then there would not have been any possibility of Harmail Singh posing as an eye-witness. 11. Strangely having sensed danger, they did not make their escape good as fast as the danger required of them. If the danger was real then, Harmail Singh and the deceased would have left the bar immediately. If that would have happened then there would not have been any possibility of Harmail Singh posing as an eye-witness. 11. It was a blind murder and in the First Information Report which was lodged next morning at about 8.00 a.m. the Investigating Agency was not sure as to who are the actual culprits. Therefore, in the First Information Report only an inference has been incorporated. Suspicion has been shown that murder has been committed by the accused persons. According to this witness, after the incident, accused had gone away from the place of occurrence. The Bar is at a place whose light could travel to the scene of occurrence to facilitate this witness to watch the occurrence. Had this claim been true ? Then there was no reason why after the accused had gone to their destination this witness would have kept on hiding himself in the cotton crop for more than one hour or one and a half hour. The locality was only three bighas away. Yet this witness has chosen to travel a distance of 8-9 kms. to go to the Dhanni of his brother Om Prakash. What is the most important to note at this juncture is that while this witness arrive at the Dhanni of his brother, he did not choose to report the matter to his brother or disclose the matter to other members of family. He only slept over it. He retired in the tube well room. This is unbelievable situation, where this witness states that though he had watched the incident yet he did not disclose this fact immediately to anybody. Not even in the next morning when he woke up and met 300-400 people on his way from Dhanni of his brother to the scene of occurrence. To all these persons who met him on way, he did not disclose the fact. This fact was not even disclosed to those who had a chance of knowing some detail about the incident. It is unbelievable that a witness who is impregnate with the information of a gruesome crime would resist the temptation if disclosing it to others. To all these persons who met him on way, he did not disclose the fact. This fact was not even disclosed to those who had a chance of knowing some detail about the incident. It is unbelievable that a witness who is impregnate with the information of a gruesome crime would resist the temptation if disclosing it to others. He immediately did not disclose the fact of incident, he kept silence until next morning. Only when the Investigating Agency was in the course of investigation then this witness tendered information to support the prosecution case in a parrot like fashion. He could be the principle target of the accused. Accused on earlier occasion also targeted him. It was he who was alleged to have been harmed by the accused persons. He should have been the first target. Accused having chosen to assault deceased reflect that this witness was nowhere around and was not in a position to see the incident. The evidence of this witness also suffers from improbabilities and. therefore, in the eye of law unless corroboration on material particulars are available but it is not easy to believe for this witness. It is not believable that this witness have seen the incident. He is a made up witness. He even goes to believe describing details of assault that first accused Kalu Singh gives blows and then Harpal Singh borrowed the axe from him and he inflicted injuries. This is an attempt to assign equal part to both accused. This attempt on the part of the prosecution is to bring infirmity in the participation reflects that as and when any such attempt is made then such attempts tendered to come to a level where they loose their credibility. 12. According to the learned amicus curiae no independent corroboration is available of the account given by this witness. In as much as in the cross examination doctor has said that he has not found liquor or its smell in the body of the deceased. If the deceased had consumed liquor soon before his death then presence of alcohol which is alleged to have been consumed by deceased previous evening would reflect from the body of the deceased. 13. According to the learned counsel for the defence the situation demanded the circumstantial evidence of blood grouping and identification should have been taken in orderly manner. If the deceased had consumed liquor soon before his death then presence of alcohol which is alleged to have been consumed by deceased previous evening would reflect from the body of the deceased. 13. According to the learned counsel for the defence the situation demanded the circumstantial evidence of blood grouping and identification should have been taken in orderly manner. Though human blood of human origin with a specific blood group has been found on the person of the accused yet the Investigating Agency did not choose to establish that the blood groups were the same as of the deceased and, therefore, cannot connect the accused with the crime. The testimony of the wife of the deceased that the accused had come to her residence at about evening and they inquired about the deceased also does not support to the prosecution story in its material particulars, therefore, that also has not significance. 14. Learned RR Per contra contended that there was a deep rooted enmity between the parties. The accused and the deceased have consumed liquor at the same bar. There was every possibility of these accused persons committing crime. The accused had even threatened and by their conduct when they demanded weapon from the bar tender, they made their intention pronounced. Eye-witnesses clearly seen the commission of crime and, therefore, there was nothing which can come in way of holding that the crime was committed by the accused persons. 15. PW.3 Harmail Singh has given a graphic detail of the incident and that being the position in the fact of the statement of the eye-witness the defence story can be given credence. 16. We have considered the arguments of both the counsel for the parties and have given thoughtful consideration on the facts obtaining on record. 17. The foremost question is whether the testimony of Harmail Singh RW.3 the only eye-witness is sufficient to bring home the offence against the appellant, Harpal Singh. According to this witness when there was altercation between him and accused persons, he sensed that there is going to be trouble. He had further deposed that he saw accused Kalu demanding weapon from the bar tender. After this the witnesses have said that he witnessed all the preparation taking place before him. Thereafter only he states that he proceeded towards the village along with deceased. He had further deposed that he saw accused Kalu demanding weapon from the bar tender. After this the witnesses have said that he witnessed all the preparation taking place before him. Thereafter only he states that he proceeded towards the village along with deceased. The narration of witness Harmail Singh has contradiction in terms because if he had perceived that there is going to be trouble then his waiting for the moment where he can observe any minor detail of preparation until the final act seems improbable. Ordinarily, after a sensing of trouble, anyone has to make an attempt to avoid it unless of course there is an attempt to counter it. There appears to be no attempt on the part of this witness or to deceased to have done anything of the kind. 18. What is unconvincing about the story is that this witness states that he has seen the accused concealing themselves in the field of Kripa Ram Bavari. If this witness knew that the accused along with an axe which they have snatched from the cycle of Sukh Dev Singh have concealed in field is within his knowledge then neither the deceased nor this witness reacted to this situation. Having seen the accused concealing themselves in the field of Kripa Ram Bavari he claims that he has sensed trouble, then going from the same way to the village would be unnatural conduct. 19. It is further claimed by this witness that he was only a distance of 3-4 feets from the deceased Gurusharan Singh when the assault took place. He did not intervene nor was he assaulted whereas according to the facts brought on record by the prosecution he should have been the prime target. Thus suspicion arises about the truthfulness of this witness. After the alleged occurrence having taken place this witness claims that he kept or hiding himself in the field for one or one and half hour. If the incident had taken place in his presence and the accused had made their escape good then there was no reason for this witness for waiting for about one or one and a half hour in the field. 20. If the incident had taken place in his presence and the accused had made their escape good then there was no reason for this witness for waiting for about one or one and a half hour in the field. 20. According to the narration of this witness the village is only three bighas away from the place where they were taking liquor but he did not choose to go to the village and inform the concerned, but had chosen to travel a distance of 8-10 kms. and had gone to the Dhanni of his brother. What is important here to note is that having gone to the brother's Dhanni he did not report the incident to his brother and rested in the room of the tube well during night. His silence thus is deafening. Not only as he kept silence throughout the night but according to his own version he met many persons before he encountered by the police at the scene of occurrence. Before informing the police he is alleged to have told nothing about the incident to anyone. A conduct which speaks of highly improbable situation, his silence become more intense when he refuses to divulge information to Gurudayal Singh who was said to be a person who have informed him that Gurusharan Singh is lying dead in the field. Yet, he does not inform him that incident has taken place within his vision. This kind of silence leads us to only an inference which can lead us only to a situation where it can be said that this witness was not a witness of occurrence. He has only been tutored to depose for implicating both the accused persons. This witness has gone to the extent that accused Kalu had hit the deceased and Harpal Singh also inflicted the injuries. If Kalu had already hit the deceased then there was perhaps no need for Harpal Singh to have borrowed axe from him and inflicted injuries on the deceased. 21. In this background it appears to be not a safe course to rely on the testimony of this eye-witness to sustain the conviction. If this witness is held to be a witness of improbable character then the court have look for strong corroboration if available on record. The testimony of other witnesses only speak of there being some quarrel between the parties earlier. If this witness is held to be a witness of improbable character then the court have look for strong corroboration if available on record. The testimony of other witnesses only speak of there being some quarrel between the parties earlier. RW.4 Kashmir Kaur speaks about the visiting of accused that about 5-6 p.m. in the evening but mere visiting to the house for inquiring about the whereabout would not be sufficient to lead to a conclusion that they had sinister designs. No other witness brings forward any incriminating circumstance against the accused persons. The only other circumstantial piece of evidence is recovery of axe which has been recovered pursuant to the information of both the accused persons. When there are two information about the same weapon then at whose instance the recovery was effected is a question which required to be seen with circumspection the axe is said to be stained with human blood What was the blood group of deceased ? It which has not established and, therefore, that too becomes a poor connecting link and cannot afford strong corroboration to the shaky statement of eye witness Harmail Singh. Thus it is not possible to sustain the conviction of accused appellant Harpal Singh. 22. This leaves us with a question that when we have not believed the testimony of Harmail Singh and has refused to confirm the conviction of Harpal Singh then what should be done with accused Kalu whose case stand at same footing as that of accused Harpal Singh when he is reported to have not filed an appeal. Both of them have been convicted under Section 302 r.w. Section 34 I.P.C. If the conviction of Harpal Singh goes then what treatment should be given to accused Kalu is to be considered. Because not giving benefit for the same set of opinion to Kalu Singh would result into miscarriage of justice. On the basis of testimony of Harmail Singh if conviction of Harpal Singh is not sustained then making Kalu Singh suffers that conviction and sentence will be an agony. Guidance can be taken in these circumstances from the case decided by the Hon'ble Supreme Court in the case of Vajrapu Sambayya Naidu & Ors. On the basis of testimony of Harmail Singh if conviction of Harpal Singh is not sustained then making Kalu Singh suffers that conviction and sentence will be an agony. Guidance can be taken in these circumstances from the case decided by the Hon'ble Supreme Court in the case of Vajrapu Sambayya Naidu & Ors. v. State of A.P. & Ors., 2004(1) SCC 152 , wherein it has been held that without filing an appeal by the accused, his conviction and sentence can be set aside on the basis of the accused being similarly situated. Para 23 of the above judgment is quoted for ready reference : "In this view of the matter, this appeal succeeds and the appellants are acquitted of all the charges levelled against them. We notice that the cases of Accused 1 and Accused 4, namely Thammireddy Apparao and Lanka Tatayyalu, stand on the same footing as that of appellants. For some reason they have not preferred appeals before this Court, but we feel that in the interest of justice they are also entitled to the benefit of this judgment. We, therefore, order their acquittal as well. The appellants herein as well as Accused 1 and ,4, namely, Thammireddy Apparao and Lanka Tatayyalu, if in custody, shall be released forthwith, if not required in connection with any other case. The appeal is accordingly allowed.'' 23. In the result, the appeal is allowed. Conviction of the accused Harpal Singh @ Harpala and that of Kalu Singh @ Kaliya being unsustainable, is set aside and consequently, the sentence passed against these accused persons under Section 302 r.w. Section 34 I.PC. is also set aside. They are in jail, if not required in any other case, should be released forthwith.Appeal allowed - Conviction set aside. *******