JUDGMENT Per: U.C. Dhyani, J. Complainant Bahadur Singh wrote a complaint (Ext. Ka-1) to Officer In-charge, PS Kashipur, District Udham Singh Nagar, on 04.07.2003, at 8:30 a.m., enumerating the facts contained therein that his daughter Rajvinder Kaur was married to Resham Singh of village Jagannathpur. A dispute of land was going on between Resham Singh and his brother Balbeer Singh. Gurnam Singh alias Gyani and Sardool Singh were on the side of Balbeer Singh. Informant’s son Nishan Singh was supporting Resham Singh. Accused persons were inimical to Nishan Singh. On 03.07.2003, Nishan Singh and his wife Resham Kumar went to meet Resham Singh. They proceeded from the house of Resham Singh at 5:00 p.m. to their house. Sardool Singh invited informant’s son (Nishan Singh and Resham Kaur) to his home. Accused Gurnam Singh alias Gyani and Balbeer Singh were present there. Gurnam Singh, Sardool Singh and Balbeer picked up a quarrel with Resham Singh over the piece of land. Nishan Singh and Resham Kaur came back to home. On the selfsame day, at 8:30 p.m., informant’s son Nishan Singh took the licensed gun of the informant and went to Jagannathpur. Nishan Singh apprehended that the accused persons might pick up quarrel with his jija (brother-in-law) Resham Singh. (Whether the victim reached Resham Singh’s house or not, was not disclosed in the FIR). On 04.07.2003, Resham Singh made a phone call to the informant in the morning that Nishan Singh’s dead body was lying on the road. Informant reached Kunda-Hariyawala Road. Mohd. Sabir and Mohd. Umar told the informant that Gurnam Singh, Sardool Singh and Balbeer Singh murdered his (informant’s) son. Mohd. Umar and Mohd. Sabir also told the informant that in the previous night (i.e. 03.07.2003) at 11:30 p.m. when Mohd. Sabir and Mohd. Umar heard the sound of fire and came on the place of occurrence, accused persons were transporting the dead body and motorcycle of the victim in a tractor trolley. The dead body was found near a field of Chen Singh. On the basis of said complaint (Ext. Ka-1), chik FIR (Ext. Ka-4) was registered in the PS concerned as regards the offences punishable under Sections 302/20 1 IPC, an entry whereof was made in G.D.(Ext. Ka-5). 2. On the basis of said first information report, which was registered as case crime no. On the basis of said complaint (Ext. Ka-1), chik FIR (Ext. Ka-4) was registered in the PS concerned as regards the offences punishable under Sections 302/20 1 IPC, an entry whereof was made in G.D.(Ext. Ka-5). 2. On the basis of said first information report, which was registered as case crime no. 609/2003, under Sections 302 and 201 IPC in PS Kashipur, District Udham Singh Nagar, the investigation began. PW 10 Vijendra Pal Singh Yadav started investigation on 04.07.2003. He conducted inquest, inspected the place of occurrence, prepared site plan, collected simple soil and blood stained soil and sent the dead body for postmortem. After completing investigation, PW 10 submitted charge-sheet (Ext. Ka-22) against the accused-appellants Balbeer Singh, Sardool Singh and Gurnam Singh for the offences punishable under Sections 302 and 201 IPC on 16.08.2003. 3. When the trial began and prosecution opened it’s case, charge for the offences punishable under Sections 302 and 201 IPC were framed against the accused-appellants Balbeer Singh, Sardool Singh and Gurnam Singh, to which they pleaded not guilty and claimed trial. As many as 10 prosecution witnesses, namely, PW 1 Bahadur Singh, PW 2 Sabir Hussain, PW 3 Mohd. Umar, PW 4 Jaspal Kaur, PW 5 Re sham Singh, PW 6 C.P.Singh, PW 7 Dr. J.K.Goyal, PW 8 Rajendra Singh, PW 9 Amit Kumar and PW 10 V.P.S. Yadav, were examined on behalf of prosecution. Statements of the accused persons under Section 313 Cr.P.C. were taken, in which they denied the allegations and said that they were falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned trial court convicted accused-appellants Balbeer Singh, Sardool Singh and Gurnam Singh for the offences punishable under Section 302 IPC read with Section 34 IPC and Section 201 IPC. Each of them was sentenced to undergo imprisonment for life and a fine of Rs. 5,000/-, in default of which, they were required to undergo one year’s further imprisonment in connection with the offence punishable under Section 302 IPC read with Section 34 IPC. Each of appellants was sentenced to undergo rigorous imprisonment for two years in relation to the offence punishable under Section 201 IPC. Aggrieved against the order of conviction and sentence, present criminal appeal was preferred. 4. Informant (complainant) entered appearance in the witness box as PW 1. Each of appellants was sentenced to undergo rigorous imprisonment for two years in relation to the offence punishable under Section 201 IPC. Aggrieved against the order of conviction and sentence, present criminal appeal was preferred. 4. Informant (complainant) entered appearance in the witness box as PW 1. In his examination-in-chief, he said that he filed the complaint (Ext. Ka-1). PW 1 also proved the contents of his complaint. He was not the eyewitness. 5. PW 2 Mohd. Sabir said that on 03.07.2003, when he along with PW 3 Mohd. Umar was going on motorcycle at 10:00-11:00 p.m., he saw the accused persons standing on the bank of Dhela river. PW 2 saw them in the light of the motorcycle. After about half an hour, PW 2 heard the sound of fire. It appeared to PW 2 that Nishan Singh was murdered. When PW 3 went into that direction, he saw that the accused persons were transporting the dead body and motorcycle of victim in tractor trolley. Then PW 2 along with PW 3 Mohd. Umar went to murgikhana (poultry farm). Thereafter PW 2 along with PW 3 Mohd. Umar went to the house of Resham Singh and informed Resham Singh that Nishan Singh was killed. In the cross-examination, PW 2 said that he saw the tractor trolley from a distance of 500-600 meters. Accused persons were standing behind the trolley. One of the accused caught hold of the head of the dead body and another accused caught hold of the legs of the victim. PW 2 along with PW 3 saw the accused persons taking the dead body in tractor trolley surreptitiously. PW 2 and PW 3 did not come to the front. They crawled behind the bush. PW 2 and PW 3 recognized the accused persons with their voices. In other words, it was a case of identification by voice. PW 2 further conceded that they did not see the faces of the accused persons and 4-5 feet grass was standing at the place where the accused persons were transporting the dead body into the tractor trolley. In view of the facts which surfaced in the cross-examination of PW 2, it was difficult to believe whether the accused persons committed the crime or not? Not much credence can be given to the voice identification. PW 2, admittedly, did not see the faces of accused persons. In view of the facts which surfaced in the cross-examination of PW 2, it was difficult to believe whether the accused persons committed the crime or not? Not much credence can be given to the voice identification. PW 2, admittedly, did not see the faces of accused persons. They did not see the accused persons killing the victim. What they saw, was that the dead body and motorcycle of victim were being lifted and transported by a tractor trolley. The evidence tendered by PW 2 was not convincing. 6. PW 3 Mohd. Umar said that he was going with PW 2 on 03.07.2003, at around 11:00 p.m. on a motorcycle. When PW 3 (along with PW 2) reached Jagannnathpur, they saw a tractor trolley standing. Accused persons were standing near the tractor trolley. After some time, PW 3 (and PW 2) heard the sound of fire. They (PW 2 and PW 3) came back from murgikhana (poultry farm). PW 3 (along with PW 2) saw that the accused persons were lifting the dead body and motorcycle of Nishan Singh. They were loading the same in the tractor trolley. They reached Resham Singh’s house at around 4:00-5:00 a.m. the next day. They started making a search for the dead body of Nishan Singh. They saw the dead body of Nishan Singh at Kunda Road, Sultangarh. In the cross-examination, PW 3 said that the poultry farm was situated at a distance of 3 00-400 paces from the place, where tractor trolley was standing. Apart from the reasons which have been assigned to non-acceptance of the evidence of PW 2, there are other reasons also for not believing the evidence of PW 2 and PW 3. PW 2 and PW 3 did not say that they were putting the lights of motorcycle on while looking at the tractor trolley. It was surprising that PW 2 and PW 3 saw the dead body of victim being taken through a tractor trolley at 11:00 p.m., but their casual approach was manifested in the fact that they did not care to inform the family members of the victim immediately. According to their own admission, they reached the house of victim at around 4:00-5:00 a.m. on the next day. There is yet another aspect of the case. According to their own admission, they reached the house of victim at around 4:00-5:00 a.m. on the next day. There is yet another aspect of the case. Will a prudent person believe that the motorcycle of the victim was also carried along with the dead body in a tractor trolley and the motorcycle was also parked at the place where the dead body was thrown? Either the motorcycle would have been left by the accused - appellants at the place where the victim was killed, or else they would have looted the motorcycle. In no case, the motorcycle would have been carried along with the dead body in a tractor trolley and the motorcycle would not have been parked at the same place where the dead body was thrown. Said conduct of the accused persons was not normal (if at all it happened). In other words, it was difficult for us to believe such piece of evidence. Presence of PW 2 and PW 3 on the given date and place was doubtful. 7. PW 4 Smt. Jaspal Kaur alias Resham Kuar, who was wife of deceased, principally highlighted the fact of enmity between the disputants over the piece of land. Likewise, PW 5 Resham Singh only said that, on 03.07.2003, victim Nishan Singh and his wife Resham Kaur stayed for a while in PW 5’s house and proceeded from their at 5:30 p.m. The next day, he heard through PW 2 and PW 3 that accused persons killed Nishan Singh. 8. Enmity is a double edged weapon. Possibility of implication of accused persons on account of enmity cannot be ruled out. When two views are possible on the basis of evidence on record, then the view leading to the innocence of the accused should be accepted. 9. No definite opinion could be given by the Forensic Science Laboratory as regards the use of DBBL gun 12 bore number 7401881. Although the blood was found on the pant, shirt, broken gun and scratches from the trolley, but no definite opinion could be given by FSL as regards the classification of blood, in as much as, the blood got disintegrated. 10. Although tractor trolley was recovered at the instance of accused Balbeer but there was no independent witness of this recovery. The same was allegedly recovered only before the police witnesses. 10. Although tractor trolley was recovered at the instance of accused Balbeer but there was no independent witness of this recovery. The same was allegedly recovered only before the police witnesses. As argued, the recovery memo was not signed by the accused (question under Section 313 Cr.P.C. not asked). DBBL gun and Hero Honda motorcycle were found near the dead body. Who was the license holder of such DBBL gun? Whether Hero Honda, in fact, belonged to the victim? The most unfortunate part was that incriminating evidence was not put to the accused persons in proper way. Sweeping and generalized questions were put to them, in which they said that prosecution story was false. Many other questions relating to the incriminating evidence, which ought to have been asked, were not framed and put to the accused persons in proper way and thereby they were denied the opportunity to explain the same. Accused-appellants were entitled to acquittal on this ground also. 11. PW 7 Dr. J.K.Goyal conducted postmortem (Ext. Ka-3) on the dead body of the deceased. He found the following ante-mortem injuries on victim’s dead body: i. An area of depressed contusion 8 c.m. x 6 c.m. on left side head in parietal region. Underlying parietal bone fractured. ii. Contusion 4 c.m. x 3 c.m. on left side neck upper part ½ c.m. below & behind. iii. An area of contusion 10 c.m. x 8 c.m. right forehead & right side face upper part joint in front of right ear. iv. One firearm wound of entry 2 c.m. x 2 c.m. x into bone deep on lateral aspect of right thigh 10 c.m. above to right knee. No blackening or scorching found. v. Lacerated wound 1 c.m. x 0.5 c.m. in the middle of lower lip. vi. Abraded contusion 2 c.m. x 1 c.m. on the lower part of chin. vii. Contusion 6 c.m. x 4 c.m. on front of left side chest upper part. viii. Contusion 4 c.m. x 3 c.m., on front of right hip, 3 c.m. above right knee. ix. Contusion 6 c.m. x 4 c.m. on inner aspect of right knee joint. x. Abraded contusion 4 c.m. x 4 c.m. outer aspect of left hip joint. 12. Dr. Goyal proved the PMR (Ext. Ka-3) and said that the cause of death of victim was due to coma as a reason of ante-mortem injuries (head injury). ix. Contusion 6 c.m. x 4 c.m. on inner aspect of right knee joint. x. Abraded contusion 4 c.m. x 4 c.m. outer aspect of left hip joint. 12. Dr. Goyal proved the PMR (Ext. Ka-3) and said that the cause of death of victim was due to coma as a reason of ante-mortem injuries (head injury). We think that further discussion on the medical evidence is not required in view of the fact that the prosecution has not been able to prove the case against the accused-appellants beyond reasonable doubt. Learned court below did not appreciate the evidence on record in the way the same was required to be marshalled and evaluated according to law. In view of the above, interference in the judgment and order under appeal is warranted. 13. Appeal preferred on behalf of the appellants Balveer Singh, Sardool Singh and Gurnam Singh is therefore allowed. The judgment and order dated 13.09.2007 passed by learned trial court is accordingly set aside. The conviction recorded in respect thereof and sentence thus awarded are also set aside. Appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. Let the lower court record be sent back.