JUDGMENT [Per: Hon’ble U.C. Dhyani, J.] This GovernmentAppeal is preferred by State of Uttaranchal against the Judgment and Order dated 27.01.2003 passed by leamed Additional Session Judge I FTC I Haridwar in Sessions Trial No. 85 of 1995 whereby accused I respondents Shyam Lal and Prakash alias Jai Prakash were acquitted of the charges of the offences punishable under Section 452, 302 IPC. 2. The contention of learned Additional GovemmentAdvocate was that the judgment and order passed by learned Additional Sessions Judge I FTC I Haridwar was illegal and contrary to the facts and material evidence available on record, Leamed trial court has wrongly disbelieved the prosecution evidence and wrongly acquitted accused I respondents. The findings recorded by the trial court were wholly based on conjectures and surmises. Learned A.G.A. therefore, prayed that the GovernmentAppeal be allowed and the impugned order of acquittal of the accused J respondents may be set .aside. A prayer was also made to convict and sentence the respondents according to law. 3. In the instant case criminal law was set into motion at the instance of Brijpal Singh s/o Puran Singh r/o Village Dhanpura PS. Pathri, District Haridwar. The complaint was addressed to the Station OfficerofP.S. Pathri alleging that on 31.10.1993 at 11:30 a.m. when he reached his residence from his fields, he saw that accused/respondents Shyam Lal and Prakash, both sons of Kabul Singh were armed with stained Kaatu and Patal (sharp edged weapons) who fled away in the east towards Fakironwali Gali. The informant heard the cries of children and women from inside the house who were saying that aunty (tai) was killed by Shyam Lal and Prakash. Raj Kumar and Som Dutt, both residents of village Dhanpura saw Prakash and Shyam Lal fleeing away in the lane. No sooner the informant entered into the house, he saw aunty {taij Chawli Devi dead and her body was lying near the cot in courtyard in pool of blood. Informant’s wife Bimla Devi and sister-in- law (bhabhl) told that Shyam.Lal and Prakash entered into the house with kaatu and patal in their hands. They inflicted blows of sharp edged weapons on the head and neck of victim. There was a dispute of land between Chawli Devi and Shyam Lal and that is why Chawli Devi (victim) was living with informant (apprehending danger to her life). They inflicted blows of sharp edged weapons on the head and neck of victim. There was a dispute of land between Chawli Devi and Shyam Lal and that is why Chawli Devi (victim) was living with informant (apprehending danger to her life). The occurrence was alleged to have taken place on 31.10.1993 at 11:30 a.m. and the FIR was lodged the same day at 1:00 p.m. The distance between the place of occurrence and Police Station concerned was 5 kms. Hence, there appeared to be no delay in lodging FIR. After investigation of the case a charge sheet for the offences punishable under sections 452 I 302 IPC was submitted against the accused I respondents. When the trial began, charges for the same offences were framed against the accused I respondents, to which they pleaded not guilty and claimed trial. 4. Prosecution examined as many as 11 witnesses viz., PW1 Bimla, PW20mwati, PW3 Brijpal Singh, PW4 Raj kumar, PW5 SI Surendra Singh, PW6 Constable Raj Kumar, PW7 SI Mohan Kumar Saini, PWe, Dr. B.N. Malhotra, PW9 Megh Raj Singh, PW10 Balbeer Singh and PW11 Som Dutt. Statements of the accused/respondents under Section 313 Cr. P.C. were taken. Accused /respondents adduced two witnesses viz. DW1 Anup Singh and DW2 Bijendra in defence. After having heard both the sides the trial court did not believe the prosecution story, held that the case against respondents was not proved beyond reasonable doubt and therefore, acquitted accused of the charges leveled against them. Aggrieved against the aforesaid order dated 27.01.2003 this Govemment Appeal was preferred. 5. PW1 Bimla w/o Brijpal was the wife of informant who said that accused/respondent Shyam Lal and Jai Prakash attacked Chawli Devi (victim) when she was combing her hairs. PW1 Bimla and PW2 Omwati were sitting in courtyard whereupon they saw the incident. She supported prosecution story in her evidence. 6. PW2 Omwati w/o Yashpal Singh also supported prosecution story. She also said that she along with PW1 Bimla were sitting in her courtyard when the incident took place. Victim was also sitting nearby on a cot in courtyard of their house. 7. PW3 Brijpal Singh was the informant who supported prosecution story and also proved his complaint (Ext. Ka-1). He was not the eyewitness but he saw accused/respondents fleeing away from the spot (after committing the crime). 8. Victim was also sitting nearby on a cot in courtyard of their house. 7. PW3 Brijpal Singh was the informant who supported prosecution story and also proved his complaint (Ext. Ka-1). He was not the eyewitness but he saw accused/respondents fleeing away from the spot (after committing the crime). 8. PW4 Raj Kumar also did not witness the crime but saw the accused /respondents fleeing towards Fakironwali Gali after committing the crime. He saw the accused persons who were armed with blood stained sharp edged weapons. 9. PW 5 SI Surendra Singh, PW6 Constable Raj Kumar, PW7 SI Mohan Kumar Saini, PW8 Doctor B.N. Malhotra (who conducted post mortem), PW9 Megh Raj Singh (witness of inquest report) and PW10 Balbeer Singh were other witnesses, most of them were formal. PW11 Som Dutt was a witness of recovery of darati (sickle) on the disclosure and pointing of accused/respondent Prakash alias Jai Prakash. 10. PW1 Bimla said that victim and Shyam Lal litigated over a piece of land. Apprehending danger to her life (from Shyam Lal) victim lived in the house of Brijpal (informant). She also said that Brijpal had no real aunty (chachi or tal). Victim was wife of late Phool Singh. Yashpal was her real brother-in-law (jeth). She admitted that her brother-in-law Yashpal was an accused in the murder of Leelapath. Accused/respondent Shyam Lal was a prosecution witness in the said criminal case. Her brothers-in-law Yashpal Ueth), Vijay (dewar) and Vedpal Ueth) were convicted in that case. She admitted that her husband had gone to field when the incident took place. It means that Brijpal was not inside the house when the incident took place. She also admitted that no witness of the locality came to the place of occurrence because everybody was viewing television. Many a people of the locality assembled when victim was dead. The Investigating Officer came to the spot after 1-1 ~ hours of the death of victim. 11. PW2 Omwati also admitted that a case of murder was pending against her husband Yashpal and her brother-in-law Ueth) Vedpal for killing Leelapath. In that case Accused/respondent Shyam Lal was prosecution witness. She also admitted that her husband Yashpal, her brother-in-law Ueth) and another brother-in-law (dewan Vijay were convicted in that case. When victim was residing at her home, Omwati’s husband got a sale deed of victim’s land executed in the name of temple. In that case Accused/respondent Shyam Lal was prosecution witness. She also admitted that her husband Yashpal, her brother-in-law Ueth) and another brother-in-law (dewan Vijay were convicted in that case. When victim was residing at her home, Omwati’s husband got a sale deed of victim’s land executed in the name of temple. Said sale deed was executed in Delhi. She also told that no witnesses of the locality came to the place of occurrence because all the persons were busy seeing televisions. 12. PW3 Brijpal Singh admitted that a land measuring four beegha and four biswan was transferred by victim in favour of temple committee by registered deed. Since accused/respondents wanted to grab the land of victim therefore, victim was residing at his house apprehending danger to her life. He admitted in his cross-examination that when he reached his house victim was already dead. Victim was residing at his residence for three months before her death. The sale deed was executed by her in Delhi. PW 3 Brijpal Singh said that he was a witness to this sale deed. He also admitted that victim executed a will on 15.10.1993 in favour of Anup in Delhi. PW 3 Brijpal Singh was also a witness to the said will. Brijpal accompanied victim to Delhi on both the occasions. He also admitted that his brothers Vedpal, Yashpal and cousin Vijay Pal were convicted for the offence punishable under Section 307 IPC. In this case accused Shyam Lal was also a witness, though declared hostile. 13. In this way there were two eyewitnesses - one was wife and the other was sister-in-law (bhabhi) of informant. Although the medical evidence supported prosecution story in as much as incised wounds were found on the body of victim, yet the trial court found discrepancy in the eyewitness account of PW1 Bimla and PW2 Omwati. The first and foremost question is - Why would the victim take refuge in ttie house of informant when her husband was killed by brother of informant? Victim became a widow and her husband was killed by elder brother of informant. Why will she take shelter in the house of killer of her own husband? No prudent person will believe that a widow will take refuge in the house of toe, killer of her husband. Secondly, there was no independent witness to the gruesome murder of victim. Victim became a widow and her husband was killed by elder brother of informant. Why will she take shelter in the house of killer of her own husband? No prudent person will believe that a widow will take refuge in the house of toe, killer of her husband. Secondly, there was no independent witness to the gruesome murder of victim. It has come an evidence that several people resided in the locality but no one came forward on hearing the killing of victim. Everybody was busy looking television, seems hig!1!y unlikely. How could both PW1 Bimla and PW2 Omwati come to know that all the neighbours were looking television when the incident took place? Thirdly, there was no occasion on the part of accused I respondents to know that the informant would not be at home when they prepared themselves for assault. Further, they had no occasion to know that the deceased was residing in the houseofthe informant. Fourthly, there was absolutely no motive on the part of accused- respondents to have committed the murder of victim Chawli Devi. 14. The trial court did not believe the testimony of PW4 Raj Kumar and PW11 Som Dutt because they were partisan witnesses. The sale deed executed by victim was in favour of DW1 Anup Singh and DW 2 Bijendra Singh. PW 4 Raj Kumar and Rameshwar slo PW11 Som Dutt were witnesses of the said sale deed. The will was executed in favour of DW1 Anup Singh. The description of property mentioned in the sale deed and the description of property as specified in the will were the same. Trial court at page nO.17 to 19 of the judgement has given the details of cases between the parties particularly in relation to sale deed I will. The trial court did not rule ouHhe possibility of naming accused in FIR after having well thought out discussion on the part of informant with his aides. The trial court also did not believe evidence under Section 27 of Indian Evidence Act on the ground that out of two witnesses viz. PW 11 Som butt and OW 2 Brijendra Singh of the said fact, PW11 Som Dutt was interested witness and another witness Bijendra Singh who entered appearance as DW2 in this case did not support prosecution story. 15. DW1 Anup Singh said that he knew accused persons viz., Shyam Lal and Jai Prakash. PW 11 Som butt and OW 2 Brijendra Singh of the said fact, PW11 Som Dutt was interested witness and another witness Bijendra Singh who entered appearance as DW2 in this case did not support prosecution story. 15. DW1 Anup Singh said that he knew accused persons viz., Shyam Lal and Jai Prakash. He ‘also knew informant PW 3 Brijpal Sin’gh. He emphasized that there was old enmity between Shyam Lal and Jai Prakash on the one hand and Brijpal on the other. Victim Chawli Devi was aunty (tai) of Shyam Lal. Chawli Devi had no relation with Brilpal. She was an aged woman with feeble mind. When Chawli Devi executed a sale-deed (and simultaneously a will), she was putting in with BrijpaJ Singh. Since they did not want to publicise the matter of sale of land therefore, the same was executed in Delhi. This witness proved unregistered sale-deed, original of which was with Brijpal. Chawli Devi affixed her thumb impression on the sale-deed in presence of DW1 Anup Singh, who also said that the will was executed in his (DW 1 Anup Singh’s) favour after 2-3 days. Brijpal and Shishpal were the witnesses of the execution’ . of will. Brijpal disclosed the future design to grab this land and said that the land will be disposed of after killing Chawli Devi. Shyam Lal and another will be falsely implicated, he added. DW 1 Anup Singh did not agree tosuch plan as disclosed by Brijpal. In short, DW 1 Anup Singh would have been the beneficiary in respect of Chawli Devi’s property after her death. The moot question therefore is - why the respondents would have killed victim? DW 2 Brijendra refuted the claim of prosecution that a patal was recovered at theinstance of Jai Prakash in his presence. The evidence thus offered in defence helps respondents. 16. There is yet another lacuna in the prosecution story. A darat; ( sickle) was sentto Forensic Science Laboratory for chemical examination whereas, according to prosecution, one of the accused was armed with kaatu and another with patal. The blood found on darat; was disintegrated and it could not be deciphered whether the blood stains on dersti (sickle) was human blood or not. 17. A darat; ( sickle) was sentto Forensic Science Laboratory for chemical examination whereas, according to prosecution, one of the accused was armed with kaatu and another with patal. The blood found on darat; was disintegrated and it could not be deciphered whether the blood stains on dersti (sickle) was human blood or not. 17. PW1 Simla and PW2 Omwati were not found to be disinterested witnesses by the trial court because both of them admitted in their evidence that Simla’s brother-in-law (jeth) Yashpal, brother-in-law (dewar) Vijay Pal and another brother-in-law (jeth) Vedpal were convicted in the case of killing of Leelapath. It was admitted that accused/respondent Shyarn Lal was witness in that case. Still further it has come in the evidence of PW3 Srijpal Singh that three sons and one daughter of his elder brother were present at home when the incident took place, but they were not produced on behalf of prosecution. The plea taken that they were enjoying T. V. programmes did not find favour with the trial court. The testimony of PW1 Simla and PW2 Omwati Devi could not be relied upon because they were the partisan witnesses and therefore, the accused /respondents were given benefit of doubt. No independent witness was produced by the prosecution in support of its case. 18. We have no reason to differ from the findings arrived at by learned trial court. No doubt enmity is a double edged weapon. If the accused could kill victim on account of this enmity, as she had executed sale deed and also executed a will in relation to the same property in favour ofTemple Committee and DW1 Anup, possibility of falsely implicating the accused/ respondents cannot be ruled out. First of all,it is not certain whether PW1 Simla and PW2 Omwati were really present on the place of occurrence. Secondly, even if they were present on the spot it is doubtful whether they saw the occurrence or not. Thirdly, their enmity with the accused/ respondents was well established, Fourthly, had there been an independent witness, their evidence could have been relied upon but unfortunately no independent witness could be produced by the prosecution. Fifthly, accused persons would not have entered into the house of informant in order to kill Chawli Devi in presence of informant. Thirdly, their enmity with the accused/ respondents was well established, Fourthly, had there been an independent witness, their evidence could have been relied upon but unfortunately no independent witness could be produced by the prosecution. Fifthly, accused persons would not have entered into the house of informant in order to kill Chawli Devi in presence of informant. They had no knowledge that informant was not present in his home, Sixthly, accused l respondents had no occasion to know that Chawli Devi has taken refuge in the house of informant. Severithly there was no motive on the part of accused I respondents to kill Chawli Devi. Eighthly it was the informant and DW1 Anup who would have been the beneficiary in respect of her property’ after the death of Chawli Devi because the will was executed in favour of DW1 Anup and the sale deed was got executed in favour of temple committee, Then why the accused would kill deceased? Last but not the least, why would Chawli Devi take shelter in the house of the killers of her husband? These were some of the hardfactswhich go against the prosecution, These facts cast a shadow of doubt on the prosecution story. Further, there is a difference between deret! (Sickle) and kaatu, although both were sharp edged weapons. Still further, recovery of sickle on the disclosure and Pointing of Prakash did not inspire confidence. The whole prosecution story falls apart lock, stock and barrel. It breaks like typhoon. 19, There is no scope of interference in the Judqrnent rendered by leamed trial court. Government Appeal against the impugned order therefore, does not succeed and is liable to be dismissed. 20. Government Appeal filed against the impugned order is therefore dismissed.