JUDGMENT Uma Nath Singh. J.:- This appeal by the State arises out of a judgment dated 5.1 0.1999 passed by learned Sessions Judge, Patiala, in Sessions Case No. 35 T, of 11.6.98/15.11.91, recording acquittal of the accused-respondents Gurnam Singh, Buta Singh, and Balihar Singh, of the charges under Sections 302 and 307/34 IPC and Sections 25 and 27 of the Arms Act. 2. As per statement of complainant Gurbax Singh, on the date of incident i.e. 26.6.1991 at about 11.00 p.m., he, and his sons, Kulwinder Singh and Sardool Singh, and other family members were lying asleep in the court-yard of their farm house. Having heard the sound of an approaching car, he got up and saw that on reaching the turning point which led to the farm house, the car was stopped, and its head lights were switched off. He made both his sons Kulwinder Singh alias Kala and Sardool Singh wake up and saw that four persons alighted from the car and were coming towards his farm house. According to him, the electric light of the court- yard was on at that time. Thus he identified them as Amrik, son of Shingara Singh (since deceased), Gurnam Singh, Balihar Singh and Boota Singh. They all belong to his native village. Accused Amrik Singh and Gunam Singh were armed with rifles,and other two co-accused persons Boota Singh and Balihar were empty handed. Complinant’s son Sardul Singh asked the accused to disclose their identity, whereupon accused Gurnam Singh is stated to have fired a gun shot towards the court yard which failed to hit anyone. Accused Balihar and Boota Singh raised Lalkara exhorting that the complainant side should not be allowed to escape. Pursuant thereto, accused Amrik fired a gun shot, which hit the deceased Sinder Kaur, daughter-in-law of the complainant in her flank. Accused Gurnam Singh followed him by repeatedly firing two gun shots out of which one hit the son of the deceased Simarjit Singh in his right knee while the other on his right arm. The complainant side raised alarms “mar dita mar dita.” Thereafter, the accused persons fired a gun shot in the air and fled away with their rifles from the spot while abandoning the car. The complainant side raised alarms “mar dita mar dita.” Thereafter, the accused persons fired a gun shot in the air and fled away with their rifles from the spot while abandoning the car. The complainant further stated that about 5-6 years prior to the date of occurrence, accused persons Buta and Balihar alongwith their father Kehar Singh, and one Baz Singh had chopped off the legs of his nephew Dewan Singh. In that case, they were convicted and sentenced by the Court. After the incident, the complainant arranged a car from the village and asked his son Sardool Singh to take the injured, Simarjit Singh and his mother Sinder Kaur, to Rajndra Hospital, Patiala. The complainant and his brother Banta Singh went to the Police Post, situated in their village, Hariayo and made the above statement before the Police which was recorded and read over to him which he endorsed and signed. The statement is Ex. PF. The complainant reached his Dera where the police also reached. However, by that time, his nephew, Harmit Singh also came back to Dera with the dead body of deceased Sinder Kaur Pursuant to the statement, an FIR (Ex. PF/2) was registered at Police Station Patran, Patiala at 2.00 a.m. on 27.6.1991. A copy of the FIR was delivered at the place of Duty Magistrate (JMIC), Patiala, at 11.00 a.m. on 27.6.1991. The inquest of the dead body was prepared by ASI Krishan A vtar of the Police post on 27.6.1991 at 3.00 a.m. He noticed the following injuries: 1. A gun shot injury in right flank. 2. A gun shot injury on right side of the chest at lower level. 3. Two injuries on right arm. According to the AS1, the apparent cause of death was the result of gun shot injuries. Postmortem on the dead body was conducted on 27.6.1991 by Dr. Satish Arora (PW.1), Medical Officer, Civil Hospital, Samana at 1.00 p.m. He noticed the following injuries: “I. Gun shot wound (A) wound of gun shot entry 1cm x 1cm on the right side of the chest on its front, lateral aspect on its lower 1/3, 11 C.M. below the nipple line, margins were inverted, blackened, collar of abrasion was present around the wound. (B) Wound of exist Gun shot wound of exit 20 cm x 18 cm on the right side of chest and abdomen, on its posterior lateral aspect, 10 cm -posterior to injury no.1-A, underlying fractured ribs were felt, part of liver large gut ruptured right kidney visible over the wound. Margins were everted, irregular. II Gun shot wound. (A) entry - 1 cm x 1 cm on the lateral side of right fore-arm in its middle 1/3, margins were inverted, blackened. (B) Exit- 2cm x 2 cm on the medial side of right fore-arm in its middle 1/3, margins were averted irregular, underlying fractured were felt. Peritoneum was ruptured. There was haem peritoneum. About one litre of blood was present. Stomach was healthy. It contained about 250 CC of semi-digested food material. Small intestines were healthy containing gas and fluids. Large intestines were ruptured on the right side, and part of it was corning out of the wound. Liver was ruptured on the right side and part of it was coming out of the wound. Kidney- right kidney was ruptured and was visible at the wound of exit. Left kidney was healthy. Urinary bladder was healthy. It contained about 60 CC of urine. Rest of the organs were healthy.” In his opinion, the cause of death was due to gun shot injury to liver, large gut and right kidney, resulting in haemorrage and shock, which was sufficient to cause death in the ordinary course of nature. During investigations rough site plan (Ex.PW14/A) and recovery memos. (Ex.PW14/B, PW14/C, PW14/D and PW14/E), were prepared by ASI Kishan Avtar. On receipt of reports of Chemical Examiner (Ex.PW14/F and PW14/G) and the reports of Serologist to Government of India (Ex.P14/H and P14/J), a challan was put up against the accused person by SI Sukhwinder Singh on 11.8.1991. The trial Court on appreciation of evidence on record, recorded the findings of acquittal on the ground of serious discrepancies in the statements of eye witnesses Gurbax Singh (PW5 ) and Simrajit Singh (PW7) regarding the identity of the accused, time of occurrence, delay in the lodgment of the FIR and delay in dispatch of the special reports to the IIaqa Magistrate. Further, the non-examination of Investigating Officer Kishan Avtar and lack of proper explanation about the circumstances of recoveries have also weighed against the prosecution in the mind of the Court during the trial. Further, the non-examination of Investigating Officer Kishan Avtar and lack of proper explanation about the circumstances of recoveries have also weighed against the prosecution in the mind of the Court during the trial. The prosecution failed to produce the witnesses of recovery, Constable Jand Pal Singh and Subeg Singh, and they were later on given up. The trial Court has also not accepted the motive as set up by the complainant as there was no reason for accused Amrik Singh and Gumam Singh to have fired at the deceased, Sinder Kaur and her son Simarjit Singh as a repraisal for conviction of accused Balbir Singh and Buta Singh in a trial for chopping of the legs of the nephew of the complainant. Regarding the scope of interference by the High Court with a judgment of acquittal, Hon’ble the Apex Court in the matter of Bhim Singh and Rup Singh Versus State of Maharashtra, (1974 CLR 337 (80) SCC. AIR 1974, SC 286) has held as under:­ “ 5. The age-old controversy with regard to the width and scope of the powers of the appellate court in an appeal against an order of acquittal must be taken as settled by the decision of the court in Sanwant Singh v. State of Rajasthan (1961) 3 SCR 120 = AIR 1961 SC 715. It was held therein that the appellate court has full powers to review the evidence upon which the order of acquittal is founded and that the different phrases used in some of the judgments of this Court like” substantial and compelling reasons”, “good and sufficiently cogent reasons”, and “strong reasons”, were not intended to curtail the undoubted power of the appellate court to review the entire evidence and to come to its own conclusion in an appeal against acquittal. It was, however, emphasised that in exercising this power the appellate court, while dealing with an order of acquittal, should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but it must express its reasons in its judgment which led it to hold that the acquittal is not justified. Following this decision this court in Ramabhupla Reddy v. State of Andhra Prdesh, AIR 1971 SC 460 held that to the tests laid down in Sanwant Singh’s case may be added another that the appellate court must bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal. Therefore, “if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the trial court.” If this additional test is applied to the instant case the conclusion is compulsive that the High Court has exceeded its powers in setting aside the order of acquittal recorded by the trial court.” 3. The test laid down in the judgment appear to be (i) if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate Court should not disturb the finding of the trial Court; (ii) The appellate Court has full powers to review the evidence upon which the order of acquittal is founded and to give its own conclusion in detail; (iii) While dealing with an order of acquittal, the appellate Court should not only consider every matter on record having a bearing on the question of fact and the reasons given by the Court below in support of its order of acquittal but it must express its reasons in its judgment which led to hold that the acquittals not justified. 4. In a latest judgment also, reported in 2007 Cr.L.J. 36 (Samghaji Hariba Patil Versus State of Karnataka), the Hon’ble Court has reiterated the view that the High Court shall not ordinarily over turn the judgment if two views are possible. Heard learned counsel for the parties and perused the record. Learned Deputy Advocate General, Punjab, Ms. Reeta Kohli submitted that there was a strong motive for commission of offence as set up by the prosecution; the assailants and the complainant side were the natives of the rural area in Punjab, and therefore, they would have acted on partisan line irrespective of proximity of relationship among them. Learned Deputy Advocate General, Punjab, Ms. Reeta Kohli submitted that there was a strong motive for commission of offence as set up by the prosecution; the assailants and the complainant side were the natives of the rural area in Punjab, and therefore, they would have acted on partisan line irrespective of proximity of relationship among them. She also submitted that the recovery of car belonging to accused Amrik Singh as also the weapons of offence seized from him, and further the recovery of empties fired from their weapons establish their presence on the scene of occurrence/and also prove their participation in the offence. According to her, Kishan Avtar Singh, the Investigating Officer, could not have been produced as he died during the trial. 5. On the other hand, learned senior counsel Sh. H.S. Gill, appearing on behalf of the respondents, submitted that there was no motive for commission of murder of deceased Sinder Kaur, and for causing injuries to Simarjit during their sleep. According to learned senior counsel, if the motive attributed by the complainant side is to be believed, then complainant, Gurbax Singh, and his sons would have been the target of assault, and not the deceased, his daughter in law. He further submitted that the delay in lodgment of the FIR, and non-despatch of a special report u/s 157 Cr.P.C. in time to the Ilaqa Magistrate had given enough opportunity to the police to manufacture a case for false implication of the accused. 6. On due consideration of the rival submissions, we do not find any merit in the appeal. It has not come in evidence that accused Amrik Singh, who is reported to have been killed by the complainant side, was also staying with the family of accused respondents as it appears from the statement of Gurnam Singh u/s 313 Cr. P.C. that accused respondents were related to accused Amrik Singh as his nephews. Similarly as noticed in the cross examination of complainant Gurbax Singh (PW5), his nephew Diwan who had suffered injuries at the hands of accused assailants had two grown up sons, namely Joga and Joginder, between the age group of 25-30. and the said Diwan Singh was living in the village whereas the complainant was staying with his family in his farm house situated in his field. and the said Diwan Singh was living in the village whereas the complainant was staying with his family in his farm house situated in his field. It has also come in his cross examinations that his son Sardul Singh was prosecuted alongwith accused Amrik Singh and one Satnam Singh in a murder case pertaining to village Sadihari, in which they all were acquitted. If accused Amrik Singh was prosecuted with the son of complainant and if the nephew of complainant Diwan Singh who had suffered injury caused by Amrik Singh and others, was staying away in his separate family house, it may not be correct to hold that the accused persons had a strong motive to do away with the complainant and his family. The recovery of car of Amrik Singh and the empties alleged to have been fired from his rifle would be incriminating materials only against him and not against other co-accused. Though Ballistic expert has given an opinion that the empties recovered from the scene of occurrence had been fried from the rifle of accused Gurnam Singh but that opinion is only an expert evidence ,and unless it was clarified that the said spent cartridges could not have been fired from any other .315 bore rifle, it may not be correct to conclude that the said cartridges were fired only from the rifle of accused Gurnam Singh. Accused Amrik Singh might have his, motive to resort to indiscriminate firing to kill the complainant side but the same may not be true in the case of other accused persons. It also appears from the cross-examinations of the complainant that he and his son Kulwinder Singh were licence holders of a .315 bore rifle and a 12 bore gun. As per his own admission, if the complainant and his son were the licence holders of the fire arms, then it looks absolutely unnatural for them to have not fired gun shots in self defence when the accused had been identified and noticed to have been carrying fire arms. In this background, it looks incredible that the complainant would have allowed the accused to shoot his daughter in law from a short distance of 4-5 feet, as the doctor has noticed blackening on the gun shot wounds sustained by her. In this background, it looks incredible that the complainant would have allowed the accused to shoot his daughter in law from a short distance of 4-5 feet, as the doctor has noticed blackening on the gun shot wounds sustained by her. It also looks suspicious that the witnesses to the recoveries were not produced in the absence of ASI Kishan Avtar who is said to have died during the pendency of trial. This is also a version of the complainant that the assailants had switched off the head lights of car, thus, it was not possible for him to identify the accused. The incident is reported to have taken place at 11 P.M. whereas the FIR was lodged at 2 A.M. and the special report was delivered the next day, at 11 A.M. There is a delay of 3 hours in lodging the FIR, and 12 hours in sending the special report to the Ilaqa Magistrate. The distance between the scene of occurrence and the place of the Magistrate at Patiala was only about 40 kms. which may not have taken that much time. 7. Hon’ble the Apex Court in a judgment reported in AIR 1976 SC 2423 (Ishwar Singh Versus State of U.P.) has held that an extra ordinary delay in sending FIR would be a circumstance to provide a legitimate ground for suspecting that the first information report was recorded much later than the stated date and hour, affording sufficient time to the prosecution to introduce improvements and embellishments and to set up a distorted version of the occurrence. 8. It also appears from the court proceedings dated 28.9.1994 that on that date, the Court was, for the first time, informed that the I.O. ASI Kishan A vtar and MHC Gurcharan Dass had died although the case was committed to the court of Sessions by the Magistrate on 25.10.1991. It also appears that after framing of the charges, the case was listed for recording of evidence on 17.4.1992, thus, the I.O. had remained alive for about 3 years after the process of recording of evidence started. As such, the Trial Court has correctly drawn an adverse inference against the prosecution and in favour of the defence. 9. It also appears that after framing of the charges, the case was listed for recording of evidence on 17.4.1992, thus, the I.O. had remained alive for about 3 years after the process of recording of evidence started. As such, the Trial Court has correctly drawn an adverse inference against the prosecution and in favour of the defence. 9. That apart, looking at the nature of injuries received by the deceased, the Trial Court after minutely examining the medial evidence has reached a correct conclusion that only one gun shot was fired and not two as opined by the Doctor. As regards the injuries of the injured witness, Simarjit Singh, Dr. Rajinder Singh (PW.4) has noticed the following injuries: 1. Lacerated wound 6 cm x 4 cm heart shaped on the right knee just lateral to lateral to tibial temerity and lig patellae/fresh blood oozing under orthopedic opinion. 2. Lacerated wound 1.5 cm long x 2 cm on lat.-Side of right elbow fresh blood oozing under surgical opinion. 3. Old fracture of lower third of right leg deformity due to mal union. The Doctor has stated that the injury located on the person of this witness could be possible from the gun shots. On a specific question asked by the police, the doctor has answered as under: Q. Can you rule out the possibility that the injuries in question could be caused with a weapon like a fire arm. Ans. I cannot rule out that possibility. 10. However, in view of motive and recovery of incriminating articles relating to accused Amrik Singh, who was later on killed by the complainant side, these injures cannot be attributed to other co-accused. Moreover, in the cross-examinations of this injured witness (PW.7), it has also come that his uncle was facing prosecution for harboring some terrorist and that terrorist was later on killed in police encounter. Accused Gurnam Singh has also taken a stand in his statement under Section 313 Cr. P.C. that some terrorists had been arrested from the house of complainant Gurbax Singh and his son Kulwinder Singh and they were prosecuted for harboring that terrorist. Gurbax Singh and Kulwinder Singh were suspecting that accused Amrik Singh had given intonation to the police. On that count, they being related to accused Amrik Singh, were. falsely implicated by Gurbax Singh and Kulwinder Singh in this case. Gurbax Singh and Kulwinder Singh were suspecting that accused Amrik Singh had given intonation to the police. On that count, they being related to accused Amrik Singh, were. falsely implicated by Gurbax Singh and Kulwinder Singh in this case. Under the circumstances, we do not find any perversity in the impugned judgment of acquittal, hence, it is affined. Resultantly, the Criminal Appeal is hereby dismissed. —————————————