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Madhya Pradesh High Court · body

2013 DIGILAW 654 (MP)

Kishan Singh v. State of M. P.

2013-05-16

B.D.RATHI, U.C.MAHESHWARI

body2013
JUDGMENT U.C. MAHESHWARI, J. The appellants accused have filed this appeal under Section 374(2), Cr. P.C. being aggrieved by the judgment dated 21-8-2000 passed by the IVth Additional Sessions Judge, Gwalior in S.T. No. 41/85, whereby the appellant Nos. 2 and 4 namely Sobran Singh and Surendra Singh were convicted under Sections 148 and 302 of IPC while appellant Nos. 1 and 3 Kishan Singh and Sugreev Singh have been convicted under Sections 148 and 149, r/w Section 302 of IPC. Pursuant to it, each of them have been sentenced for one year RI with fine of Rs.1000/- in default of depositing the fine amount for further three months imprisonment in the first count while for life imprisonment, with fine of Rs.5000/-. In default of depositing the fine amount for further one year RI in the last count. 2. The facts giving rise to this appeal in short are that on 14-7-1984, at about 6.10 in the evening, the complainant Mahendra Sharma, (P.W. 1) lodged an FIR, (Ex. P-1) at P. S. Dabra contending that he accompanied with Balkishan Brahmin (P.W. 4) was sitting on his Flour Mill situated in his village on the way of Tekanpur. At the same time towards from the village, the appellant No. 3, Sugreev Singh lashed with Pachfera (fire arm), and appellant No. 1, Kishan Singh lashed with farsa, (sharp edged weapon) came there and stood by the side of the road. In further averments, it is stated that at that time, his brother Ajay Sharma went to J. P. General Store. There was earlier enmity between his and the appellants families, therefore, on account of some doubt, he saw towards the appellant Nos. 3 and 1, then he found that some indication was given by them by raising their hands, resultantly, the appellant No. 4, Surendra Singh lashed with twelve bore single barrel rifle and the appellant No. 2, Sobran Singh lashed with twelve bore double barrel rifle and one Mira lashed with Katta came there towards from the village. At the same time above-mentioned appellant No. 3, Sugrive Singh and appellant No. 1, Kishan Singh told to kill the enemy present there. Ajay entered into the shop and tried to pull down the shutter. At the same time above-mentioned appellant No. 3, Sugrive Singh and appellant No. 1, Kishan Singh told to kill the enemy present there. Ajay entered into the shop and tried to pull down the shutter. Meanwhile the appellant No. 1, Kishan Singh and appellant No. 3, Sugreev Singh went there and pulled the shutter up and appellant No. 2, Sobran Singh and appellant No. 4, Surendra Singh, with intention to cause death of Ajay, opened fire from their respective rifles on Ajay resultantly on sustaining the buller injuries, he fell down. Then the accused Meera threatened that everybody who will come here, will be killed. Thereafter the appellants fled away towards the agricultural field. Subsequent to it, he reached near to Ajay, who was lying dead on the floor of such shop. He sustained the bullet injuries on his left hand and in the right armpit. Veer Singh had also reached. The appellants Kishan Singh, Sobran Singh and Sugreev Singh and Surendra Singh all are real brothers and sons of Lal Singh Jat and Meera is their friend. On account of Panchyat Election there was enmity between the father of the appellants and his family. On account of such enmity in the case of murder of Prayag Singh the brothers of the appellants, they implicated his brother Ajay. In which after holding the trial the Ajay was acquitted by the Court and due to that the appellants have murdered Ajay. 3. On the aforesaid information, crime No. 211/84 was registered against the appellants at P.S. Dabra, (Ex. P-1) for the offence of Section 302/148/149 of IPC. According to such FIR, offence was committed on the aforesaid date at about 5.30 in the evening. 4. Immediately after lodging the report the Police (Investigating Officers) came to the place of the occurrence where after preparing the spot map (Ex. P-2) the articles found were seized by Panchanama, (Ex. P-3), Inquest Panchanama of corpus of Ajay, (Ex. P-4) was prepared and thereafter dead body was sent to the hospital with an application, (Ex.P-5), where it autopsy was carried out by Dr. K.G. Maheshwari, (P.W. 3), the postmortem report, (Ex. P-6) was prepared. In that the cause of death was found to be the excessive haemorrhage, respiratory failure and circulating failure and shock due to bullet injuries. In further investigation, through photographer, some photographs of such place were taken out, (Exs. P-9 to P-14). K.G. Maheshwari, (P.W. 3), the postmortem report, (Ex. P-6) was prepared. In that the cause of death was found to be the excessive haemorrhage, respiratory failure and circulating failure and shock due to bullet injuries. In further investigation, through photographer, some photographs of such place were taken out, (Exs. P-9 to P-14). The interrogatory statements of the witnesses were recorded. The clothes of the deceased and pallets/bullets found in the corpus of Ajay were handed over by the Doctor to the Police, which were sent to the forensic lab for its chemical examination, where the same was carried out and its report was produced in the record of the trial Court. 5. The Patwari map, (Ex. P-18) was also got prepared. The appellant No. 1, Kishan Singh was arrested on 15-7-1984 by Panchanama, (Ex. P-8) and on disclosing the information by him, his memorandum under Section 27 of the Evidence Act (Ex. P-19-A) was recorded. Pursuant to it at his instance, the farsa was recovered. Subsequent to it, the appellant No. 4, Surendra Singh was arrested on 11-7-1986, while the appellant No. 2, Sobran Singh and appellant No. 3, Sugreev Singh were arrested on 28-9-1984 by the P.S. Padav in Crime No. 11/84. At the time of their arrest from their possession their respective licensed rifles of twelve bore, double barrels and twelve bore single barrel were seized from them. Subsequently they were sent to the aforesaid P.S. in connection of the impugned crime. The further investigation was held. On completion of the same the appellants were charge-sheeted. One of the accused namely Meera being absconded could not be arrested and charge-sheeted. 6. After committing the case to the Sessions Court, on evaluation of the charge-sheet, the charge of Section 149/302 and Section 148 of IPC were framed against the appellant No. 1 Kishan Singh and appellant No. 3, Surendra Singh while the charge of Section 302, in alternate of Section 149/302 and 148 of IPC were framed against the appellant No. 2, Sobran Singh and appellant No. 4 Surendra Singh. They abjured their guilt, on which the trial was held and statements of sixteen prosecution witnesses were recorded, while two witnesses were examined by the defence. On appreciation of the evidence, the appellants were held guilty and punished, as stated above. Being aggrieved from such conviction and punishment, the appellants have come to this Court with this appeal. 7. They abjured their guilt, on which the trial was held and statements of sixteen prosecution witnesses were recorded, while two witnesses were examined by the defence. On appreciation of the evidence, the appellants were held guilty and punished, as stated above. Being aggrieved from such conviction and punishment, the appellants have come to this Court with this appeal. 7. Shri. N.P. Dwivedi and Shri. Atul Gupta, learned arguing counsel for the appellants after taking us through the record of the trial court argued that on proper appreciation of evidence available on record, the appellants ought to have been acquitted by the trial Court but they have been convicted under the wrong premises. In continuation by referring the depositions of the prosecution witnesses examined as eye-witnesses of the incident complainant Mahendra Kumar Sharma (P.W. 1), brother of the deceased, Veer Singh (P.W. 2) and Bal Krishan (P.W. 4), submitted that the testimony of Mahendra Kumar Sharma (P.W. 1), on the material questions are apparently inconsistent with the FIR and his case diary statement, as while lodging the report, he did not specifically stated that Veer Singh (P.W. 2) was present at the time of happening the incident or sustaining the injuries by the deceased. He further said that Bal Krishan in his deposition has not supported the prosecution case. On the contrary, he turned hostile and has not proved the presence of Mahendra Kumar Sharma, (P.W. 1) near the place of the incident, as stated by him. In continuation, he said that Veer Singh, in his chief examination has stated some incriminating thing against the appellants but in cross-examination he did not support the prosecution case and stated contrary to chief examination and the facts remains that he is not stated as eye-witness in the FIR (Ex. P-1) as well as in case diary statement of Mahendra Sharma, counsel said that according to it initially the presence of the witness Veer Singh near the place of incident and at the time of happening the incident was not shown. Only during the course of deposition, for the first time in the Court and contrary to aforesaid earlier version the Mahendra Sharma has shown the presence of this witness at the scenario of the incident. Thus, the same being material exaggeration could not be a foundation to hold the presence of Veer Singh on the spot. Only during the course of deposition, for the first time in the Court and contrary to aforesaid earlier version the Mahendra Sharma has shown the presence of this witness at the scenario of the incident. Thus, the same being material exaggeration could not be a foundation to hold the presence of Veer Singh on the spot. In such premises, the presence of the alleged eye-witness Veer Singh at the scenario of the incident is doubtful thus his testimony could not be relied on. He further said that Veer Singh in his in-chief stated, till some extent, in favour of prosecution while in cross-examination by dismantling the entire in-chief, has stated different story, on which he was also declared hostile. Thus on this count also his testimony is not safe to hold the conviction of the appellants. In continuation he said that the presence of Mahendra Kumar Sharma (P.W. 1) near the place of occurrence, is also doubtful due to lack of independent supporting evidence. Thus, mere on suspected sole testimony of Mahendra Kumar Sharma, in the light of deep enmity factor between the parties, the impugned conviction of the appellants is not sustainable. By referring para 19 of the deposition Mahendra Sharma in which fact regarding enmity has been accepted by him, he said that the probability of false implication of the appellants in this matter by this witness, could not be ruled-out. He further said that unless the presence of Mahendra Kumar Sharma (P.W. 1) is proved near the place of incident at the time of happening the incident by cogent, admissible and reliable evidence, his testimony could not be the foundation to hold the conviction of the appellant. Now there is no option in the matter except to rely the testimony of Man Singh (DW-1), who categorically stated that he was doing his job as Barber nearby the place of the incident and the alleged gun-shot was fired on Ajay by some unknown person, on which, he went to the residence of Mahendra Kumar Sharma (P.W. 1) and apprised him about the incident then Mahendra Kumar Sharma, came on the spot, till then such unknown assailant had gone. It was not only stated by aforesaid defence witness, Man Singh but the other defence witness, Rajendra (D.W. 2) has also stated the same. It was not only stated by aforesaid defence witness, Man Singh but the other defence witness, Rajendra (D.W. 2) has also stated the same. Such story put forth by the defence witnesses till some extent has also been supported by the prosecution witness Veer Singh and Balkishan. In such premises, the appellants could not be held to be the culprits of the alleged incident. 8. In continuation, he said that in view of the existing factor of enmities between the families of the appellants and said Mahendra Kumar Sharma (P.W. 1, the real brother of the deceased), on account of political rivalry and murder case of Prayag Singh (the brother of the appellants) in which Ramnath, the father of Mahendra Kumar was prosecuted and convicted, the Court has to consider the testimony of Mahendra Sharma with cautious and care. It is settled proposition of law that unless the presence of material/solitary witness by independent source of evidence at the scenario of the incident is proved, his testimony is neither sufficient nor trustworthy to hold the conviction against the appellants. 9. In further arguments he said that from the spot map, (Ex. P.2) prepared by Police on the date of the incident and spot map prepared by the Patwari (Ex. P.18), after some days of the incident, it is apparent that shop of J.P. Store in which the alleged incident occurred is covered with walls from three sides and its shutter is open towards the western side and as per testimony of Mahendra Kumar Sharma (P.W. 1), he was sitting nearby his flour mill situated towards the northern, eastern side of J.P. Store so also the other side across the side road. By referring the said maps and the depositions of Patwari as well as of Investigating Officer he said that according to them, the front part of the J.P. Store facing towards some other road, is not visible from the flour mill where Mahendra Sharma was seating. So in such premises, also the testimony of Mahendra Kumar Sharma (P.W. 1) is not reliable. So in such premises, also the testimony of Mahendra Kumar Sharma (P.W. 1) is not reliable. He further submitted that as per deposition of Veer Singh (P.W. 2), Balkishan (P.W. 4), Ramnarayan Dubey (P.W. 5), Jaiprakash Bhadoriya (P.W. 7) Patwari, Kailash Narayan Shrivastava (P.W. 9) and also according to defence witnesses, there were some ipomoea carnea bushes (shrubs of Beshram) being standing by the side of the aforesaid road and in view of such ipomoea carnea bushes (shrubs of Beshram), the place of incident was not visible from the flour mill. So in such premises, prosecution evidence is not reliable. 10. He also said that undisputedly the alleged incident was happened in the evening in the locality where various shops are situated and various persons were also present but none of them who were examined have supported the case of prosecution. So in these circumstances, merely on the testimony of Mahendra Kumar Sharma (P.W. 1) no inference could be drawn against the appellants. 11. In further arguments, by referring the Ballistic Expert Report, (Ex. P-24) he said that according to opinion of expert, it is not possible to estimate with scientific accuracy the time elapsed since the gun was fired last and it is apparent fact that Sobran Singh and Surendra Singh were arrested after two months and licenced rifle of Sobran Singh was seized. So in view of such opinion of the Expert that rifle of appellant No. 2, Sobran Singh could not be connected with the alleged incident. Specifically, when there is the opinion that the alleged empty twelve bore cartridges could be fired with rifle like the seized one. So in the lack of seizure of gun of Surendra Singh and in view of aforesaid opinion of Ballistic Expert, no inference could be drawn against the appellants. 12. He further said that the presence of appellants or any of them at the place of incident has not been proved by any independent source of evidence. He also said that on carrying out the autopsy of Ajay according to the deposition of the Doctor, he has found three bullet in such corpus and judicial notice could be taken by this Court that from twelve bore rifle the bullet shot could not be made. While cartridges having pallets could be fired from the twelve bore gun. He also said that on carrying out the autopsy of Ajay according to the deposition of the Doctor, he has found three bullet in such corpus and judicial notice could be taken by this Court that from twelve bore rifle the bullet shot could not be made. While cartridges having pallets could be fired from the twelve bore gun. He said that there is no case of the prosecution that any bullet shot was caused by the alleged appellant. He said that empty cartilages recovered from the spot were not properly sealed and in which manner the same were handled and dealt with till sending to the forensic lab for ballistic analysis by the police in this respect no evidence has been put fourth by prosecution. The malkhana register of the Police Station was neither produced nor proved. Such thing is also not connecting the appellant Nos. 2 and 4 with the alleged offence. Lastly he said that in order to prove the bona fide of the Investigating Agency, all the concerning Rojnamcha entries had neither produced nor proved on the record. With these submissions, the appellants counsel has prayed to extend acquittal to the appellants from the alleged charge by allowing this appeal. 13. The appellants counsel has also placed reliance on some reported decision of the Apex Court as well as of this Court. 14. On the contrary by justifying the impugned conviction of the appellants Shri. B.K. Sharma, respondent counsel said that the approach of the trial Court being based on proper appreciation of the evidence is in conformity with law. It does not require any interference at this stage to extend acquittal to the appellants. He said that besides the depositions of alleged eye-witness and the complainant Mahendra Kumar Sharma (P.W. 1), the prosecution has successfully proved the case through circumstantial evidence through Dr. K.G. Maheshwari (P.W. 3) and the post-mortem report of the deceased, so also through Kedar Singh, (P.W. 16), the I.O. and prayed for dismissal of the appeal. 15. Having heard the counsel at length, keeping in view their arguments, advanced, we have carefully gone through the record of the trial Court including the evidence adduced by the parties and the exhibited papers of the charge-sheet so also the impugned judgment. 16. 15. Having heard the counsel at length, keeping in view their arguments, advanced, we have carefully gone through the record of the trial Court including the evidence adduced by the parties and the exhibited papers of the charge-sheet so also the impugned judgment. 16. Firstly, we proceed to examine the sustainability of the findings of the trial Court holding Ajay died with the homicidal death due to excessive haemorrhage, failure of respiratory system and shock on account of sustaining the bullet shot injuries, as stated in the post-mortem report (Ex.P-6) proved by Dr. K.C. Maheshwari (P.W. 3), we have carefully examined the post-mortem report, so also perused the deposition of said Doctor. In the deposition, the Doctor has stated that he found three bullets and fourteen pellets from different places of the corpus of Ajay, although his deposition, till some extent, regarding description of bullets and pellets, is inconsistent with the post-mortem report, but in the lack of any contrary evidence, there is no circumstance in the case to modify the aforesaid findings of the trial Court holding the Ajay died due to homicidal death. Therefore, such finding of the trial Court is hereby affirmed. 17. Now the Court has to answer the question whether the alleged injuries of gun shots were caused to the person of Ajay by the appellant Nos. 2 and 4, Sobran Singh and Surendra Singh, with their respective rifles in furtherance of the common object of the appellants or such death was caused by some other or unknown persons. It is apparent from the impugned judgment that the trial Court has mainly relied on the testimony of Mahendra Kumar (P.W. 1) the complainant and brother of the deceased along with the post-mortem report (Ex. P-6) and the deposition of Doctor K.G. Maheshwari, so also till some extent on the version of in-chief of the hostile witness Veer Singh (P.W. 2). It is settled preposition of law that in a criminal case the testimony of the eye-witness mere on account of his relationship with the deceased or the victim by holding him the interested witness only on such count could not discarded if his presence at the place of incident is proved by the available evidence and circumstances and his testimony appears to be trustworthy. So, his testimony should be considered with all cautious and care because on account of the factum of existing serious enmity between the parties, the possibility of false implication of the accused like appellants could not be ruled out. 18. True it is the complainant, Mahendra Kumar Sharma (P.W. 1) lodged the FIR with the Police immediately after forty minutes from the time of the alleged incident and has implicated the appellants by stating their alleged acts. As per FIR, at the time of the incident he along with Balkishan (P.W. 4) was sitting nearby his flour mill facing towards southern side situated other side of the road and towards the northern, eastern sides from the sop of J. P. Store in which the alleged incident was happened. The shop of J. P. Store is facing towards its western side while towards northern southern and eastern side of this shop there is a wall as evident from the spot map, (Ex. P18) prepared by Patwari. Bare perusal of such map and deposition of Patwari Kailash Narayan Shrivastava (P.W. 18), it is apparent that the inner part of the shop of J. P. Store, the place of the occurrence is not visible from the aforesaid flour mill. Besides this, there is some long distance from northern wall of J. P. Store and the aforesaid flour mill because there is some road existed as S. No. 238 between these two shops and other side of the road in front of the flour mill, some open land of survey Nos. 237 and 236 is also situated as evident from aforesaid map (Ex.P/18) thus, keeping in view such circumstance, we have gone through in-chief as well as cross-examination of Mahendra Kumar Sharma (P.W. 1). It is true that in his entire chief, he tried to support the version stated in the FIR and his case diary statements but the same is exaggerated by him to show the presence of Veer Singh at the time of happening the alleged incident while such presence of Veer Singh was neither stated by him in the FIR, (Ex. P-1) nor in his case diary statement (Ex. D-2). In both the papers, he stated that after sustaining the bullet injuries by deceased Ajay when he reached near him, at that time Veer Singh also came there. P-1) nor in his case diary statement (Ex. D-2). In both the papers, he stated that after sustaining the bullet injuries by deceased Ajay when he reached near him, at that time Veer Singh also came there. Accordingly, such version of the witness being contrary to his FIR and the case diary statement could not be the foundation to draw the inference that at the time of happening the alleged incident causing the gun shot injuries to the deceased Ajay, Veer Singh was present. In this circumstance, the in-chief of the deposition of Veer Singh (P.W. 2) in which contrary to the version of FIR so also in exaggeration of initial prosecution case he tried to show his presence at the time of incident, is not reliable. Even otherwise, in view of his cross-examination in which he disowned his entire chief. Although cross-examination of this witness was carried out on the other date from the date of recording in-chief. But, in any case, the inconsistent testimony of Veer Singh (P.W. 2) as in the chief he supported the prosecution case and later, on cross-examination, he himself demolished his entire version of in-chief could neither be safe nor could be foundation to hold that Mahendra Kumar Sharma (P.W. 1) was present nearby the place of the incident on the aforesaid flour mill and saw the appellants/accused as culprits of the incident. 19. Our aforesaid approach with respect of the deposition of Veer Singh that inconsistent statements of the witnesses in the same trial and same depositions at different places of the same deposition could not be relied upon is fully fortified by the decision of the Apex Court in the matter of Suraj Mal v. The State (Delhi Administration) AIR 1979 SC 1408 : (1979 Cri LJ 1087) in which it was held as under :- “Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses..... Placitum.” 20. Placitum.” 20. In view of the aforesaid discussion if the presence of Veer Singh (P.W. 2) at the time of happening the incident nearby the place of incident is excluded then there is no any other evidence on record to show that the Mahendra Kumar Sharma (P.W. 1) was present at the time of happening the incident on the aforesaid flour mill or nearby the place of the incident. As per FIR complainant Mahendra Kumar Sharma (P.W. 1) was sitting with Bal Kishan (P.W. 4) on his aforesaid flour mill and thereby the Bal Kishan was shown to be the eye-witness of the incident but on recording the deposition, Balkishan (P.W.4) has not supported the testimony of Mahendra Kumar Sharma (P.W. 1). Even he has neither proved nor admitted the presence of Mahendra Kumar Sharma (P.W. 1) along with him on the spot at the time of incident. As such any of the alleged eye-witnesses of the prosecution including Veer Singh and Bal Kishan have neither proved nor accepted the presence of Mahendra Kumar Sharma (P.W. 1) at the time of incident nearby the place of incident or on the aforesaid flour mill. The burden to prove such fact was on the shoulder of the prosecution and same could have been proved by examing the shop keepers of such locality or other persons who were present in the market on that day, but out of them, none has proved the presence of Mahendra Kumar Sharma, (P.W. 1). So in such premises, when presence of Mahendra Kumar Sharma (P.W. 1) at the place of the incident itself is doubtful at the time of incident, then in that circumstance, mere on his testimony, in the light of long history of inimical relationship between the parties, it could not be said that the culprit, the assailants who made gun shots on the deceased Ajay in J.P. Store was seen or identified as the appellants or any of them. 21. Apart the aforesaid Mahendra Kumar Sharma (P.W. 1), in his deposition categorically stated that distance of J. P. Store the place of incident, from his flour mill was near about 20-25 steps, i.e. near about 50 feet. While as per Patwari map (Ex. 21. Apart the aforesaid Mahendra Kumar Sharma (P.W. 1), in his deposition categorically stated that distance of J. P. Store the place of incident, from his flour mill was near about 20-25 steps, i.e. near about 50 feet. While as per Patwari map (Ex. P-18) prepared by Patwari, Kailash Narayan Shrivastava (P.W. 18) of the measurement, the distance of I.P. Store from the alleged flour mill was shown about 119 feet while after turning hostile the prosecution witnesses, Veer Singh (P.W. 2), Bal Kishan, (P.W. 4), Jaiprakash Bhadorya (P.W. 7) have stated such distance 400-500 feet. For the sake of arguments if it is deemed that Veer Singh and Bal Kishan being hostile witnesses their version regarding aforesaid distance could not be relied on then in any case a relative the maternal uncle of the deceased Mahendra Kumar Sharma (P.W. 1) and the witness of spot map (Ex. P/2), prepared by Police namely Ram Narayan Dubey (P.W. 5), who did not turn or declared hostile, on recording his deposition in para 2 of his cross-examination categorically stated the distance of the J. P. Store from the flour mill of Mahendra (P.W. 1) was near about 400-500 feet. So in such premises, on taking into consideration the aforesaid all three inconsistent version of the witnesses, one thing is certain that in the light of deposition of Patwari and his map and the deposition of said relative of Mahendra Kumar Sharma i.e. Ram Narayan Dubey, the version of Mahendra Kumar Sharma (P.W. 1) stating the distance of 40-50 feet is not reliable. In the available circumstances, such distance could not be deemed to be less than 119 feet as stated by Patwari so also in view of the deposition of Ram Narayan Dubey, the same was either 119 feet or more than this. For the sake of arguments, if it is deemed that Mahendra Kumar Sharma (P.W. 1), was sitting on his aforesaid flour mill at the distance of more than 119 feet from the J.P. Store in which the gun-shot was made on the person of Ajay then in view of the opinion and deposition of Dr. For the sake of arguments, if it is deemed that Mahendra Kumar Sharma (P.W. 1), was sitting on his aforesaid flour mill at the distance of more than 119 feet from the J.P. Store in which the gun-shot was made on the person of Ajay then in view of the opinion and deposition of Dr. K. G. Maheshwari, who prepared the post-mortem report, the alleged gun-shot was made on the person of the deceased from the distance of less than three feet, then on account of aforesaid long distance and the situation of the northern wall of J. P. Store it could not be deemed that the place of occurrence was visible to the Mahendra Sharma (P.W. 1) from his aforesaid flour mill. So, in such premises also it shall be deemed that the alleged incident and the culprit who made the alleged gun-shot was not seen by Mahendra Kumar Sharma (P.W. 1). As such, he was not in a position from his flour mill to see the incident and its real culprit. 22. Aforesaid question regarding visibility of the place of incident from the flour mill of Mahendra Kumar Sharma (P.W. 1) may also be considered in the light of other circumstances, according to which as per deposition of Patwari, Kailash Narayan Shrivastave, (P.W. 18) and in the light of cross-examination of Ramnarayan Dubey and the hostile witnesses, namely, Veer Singh, Balkishan, Jaiprakash Bhadoriya, so also the depositions of defence witnesses Man Singh and Rajendra that between J.P. Store and the flour mill, there is a road and at the side of the road some ipomoea carnea bushes (shrubs of Beshram) having the height of 6 to 7 feet were there and due to that person could not see the place of the incident, i.e. J.P. Store from flour mill. So in such premises, also it could not be said that Mahendra Kumar Sharma (P.W. 1) saw the alleged incident while happening the same or identified the culprits of the same. 23. Now we proceed to examine the case in the light of the fact of inimical relationship between the parties and others since long and on account of that whether there is a possibility of false implication of the appellants as argued by the appellants counsel. 24. 23. Now we proceed to examine the case in the light of the fact of inimical relationship between the parties and others since long and on account of that whether there is a possibility of false implication of the appellants as argued by the appellants counsel. 24. On perusing the paras 11, 14, 15, 16 and 19 to 25 of the depositions of Mahendra Kumar Sharma (P.W. 1), it is apparent that the deceased and his family including this witness had enmity since long with so many persons including the family of the appellants and due to that the family members of the Mahendra have been implicated by other persons in different criminal matters, according to this witness Mahendra against his father Ramnath and deceased Ajay, the case of murder of Prayag Singh, the brother of the appellants was tried in which deceased Ajay was acquitted while his father, Ram Nath was convicted and sentenced. As per further averments of deposition, besides from the family of the appellants, the deceased was also having deep enmity with the other persons namely, Ramesh, Brij Mohan and Purshotam, son of Ram Bai, and on account of that civil litigation was also contested between them. According to such case the family of this witness and the deceased was quarrelling with the above-mentioned persons on account of possession of some agricultural land. As per para 16 of the deposition, the criminal case at the instance of Brij Mohan was also registered against deceased Ajay and his father Ramnath. In para 19, the witness has categorically accepted that since last fifteen years, on account of deep enmity and inimical relations with the above-mentioned Ramesh, Brij Mohan and Purshotam, they always remained interested to cause the injuries to the family of the witness, so also try to implicate them in false litigations. In same para 19 the witness has accepted that he and every member of his family are puzzled and under harassment of the appellants because they are always remained interested and try to cause the injury to his family. So his family wants that the appellants should go away by leaving the village. He further stated because of the activities of the appellants they have become deeply puzzled and at any cost they want to get rid off from the appellants. So his family wants that the appellants should go away by leaving the village. He further stated because of the activities of the appellants they have become deeply puzzled and at any cost they want to get rid off from the appellants. In view of the aforesaid deposition of Mahendra Kumar Sharma, his entire family including the deceased Ajay Sharma had serious inimical relations and enmity with the appellants and some other persons whose names are stated above, from the deposition of this witness Mahendra Sharma. 25. Apart the aforesaid, Mahendra Kumar Sharma (P.W. 1) in para 26 of his deposition has also stated that in 1980, his father Ramnath contested the election of Sarpanch of village against the appellant No. 3, Sugriv Singh in which his father was defeated by Sugriv Singh. In view of such deposition, it is apparent that on account of village politics and election of Sarpanch the long enmity was existing between the parties. 26. In view of the aforesaid enmity factor if the case is examined, then in view of aforesaid discussion it is apparent that from the uncorroborated testimony of Mahendra Kumar Sharma (P.W. 1) could not prove the presence of this witness at the scenario of the incident by cogent, admissible and reliable evidence. Thus, in view of aforesaid serious inimical relationship of the parties unless the testimony of Mahendra Sharma (P.W. 1) is found to be supported by any independent witness or the source of independent evidence, his sole testimony, being interested witness, having serious animus with the appellants, is neither reliable nor sufficient to draw any inference to hold the conviction against the appellants. Thus there is no option with the Court except to discard the testimony of this interested witness, Mahendra Kumar Sharma, (P.W. 1). Our aforesaid view is fully fortified by the decisions of the Apex Court in the matter of (i) Badri v. State of Rajasthan (1976) 1 SCC 442 : ( AIR 1976 SC 560 ) in which it was held as under :- “19. Further .............If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction. Such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony. Further .............If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction. Such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony. (ii) Bir Singh and others v. The State of Uttar Pradesh, AIR 1978 SC 59 : (1978 Cri LJ 177) in which it was held as under :- “9. P.W. 2......... It is true that it was not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule however does not apply where the evidence of the eye-witness suffers from various infirmities and could be relied upon only if properly corroborated. In the instant case all the eye-witnesses had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstance. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstance that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the FIR was ante-timed and although the High Court has not accepted this finding we feel, that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. At any rate, it cannot be said that if under these circumstances the Sessions Judge was not prepared to accept the evidence of these witnesses his judgment was wrong or unreasonable. It may be that the High Court could have taken a different view but that by itself as held by this Court is not a sufficient ground for reversing an order of acquittal.” (iii) In the matter of State of U.P. v. Satish Chandra and others, 1985 (Supp) SCC 596 : (1985 Cri LJ 1921) in which it was held as under :- “6. It is not necessary................Unless there is satisfactory evidence to implicate the accused persons in the crime, it would be difficult to hold that the accused persons had really caused death of the deceased. While all other particulars relating to the prosecution case may not be disputed, as held by the High Court, the authorship of the crime had been in dispute and the prosecution has to fail as it has not established that fact. If the link between the incident and the respondents is not established, the High Court was justified in acquitting them.” (iv) In the matter of Patel Chela Viram v. State of Gujarat, AIR 1994 SC 1250 : (1994 Cri LJ 2252) in which it was held as under :- “5. As mentioned above, the High Court mainly relied on the evidence of P.W. 2. We find from the judgment of the Sessions Court that P.W. 2 admitted that there are two rival factions and he filed an application against the accused in the year 1976 for binding over them and consequently proceedings were launched against the accused and that there were certain other instances which would show that P.W. 2 was inimical towards the accused. Therefore, it cannot be said that he is an independent witness. Further, there is some force in the submission of the learned Counsel for the appellant that P.W. 2 appears to be a chance witness. He deposed that he went to this particular field which is away from his house to answer the call of nature. On his being a chance witness it is necessary to have a closer scrutiny of his evidence. Coming to the medical evidence we find only four contusions yet the evidence of P.W. 2 is to the effect that all the other four accused dealt blows with sticks. This part of the evidence is not corrborated by the medical evidence. It is pointed out in number of cases by this Court when the case rests on the sole testimony of the single witness, the same should be wholly reliable. We find in the instant case that P.W. 2 is not only an interested witness but the version given by him is highly doubtful apart from the fact he being a chance witness. The view taken by the Sessions Court is quite reasonable.” 27. We find in the instant case that P.W. 2 is not only an interested witness but the version given by him is highly doubtful apart from the fact he being a chance witness. The view taken by the Sessions Court is quite reasonable.” 27. Coming to consider the question connecting the licensed rifle seized from the possession of appellant No. 2, Sobran Singh with the alleged incident is concerned, as per record available such appellant was arrested along with his licensed rifle nearabout after two and half months from the date of the incident in some other crime number of P. S. Padav. The rifle was also seized by such P. S. the subsequently it was sent to the aforesaid P. S. Dabra, where the impugned offence was registered but the prosecution has failed to prove that after seizing the aforesaid rifle from Sobran Singh, in which manner it was handled and dealt with and in which manner it was kept till sending the same to FSL for ballistic examination. In this regard the concerning relevant register of Malkhana of the P. S. so also the sample of the concerning seal affixed on the sealed articles, the concerning Rojnamcha entries by which the same were sent to FSL were neither produced nor proved on record. The same position is also on record regarding the seized blank cartridges from the spot. These cartridges till sending to the FSL in which manner, the same were dealt with or kept in the safe custody for which the concerning document or the record has neither been produced nor proved. So, in the lack of such material evidence the available ballistic expert report, (Ex. P.24) could not be connected as piece of evidence against any of the appellants in the present case. Even apart, for the sake of arguments, if such report Ex.P/24 is taken into consideration, then according to it, the expert was not in a position to say that when the last fire was made by the seized alleged rifle of the Sobran Singh and in such report, only it was stated that the cartridges under examination could be fired from the rifle like the seized rifle. So in such premises, it could not be deemed that there is direct evidence that the alleged fire was made by the appellant No. 2, Sobran Singh on the date of the incident to cause gun shot injuries to the deceased, Ajay. So, in such premises also the impugned conviction is not sustainable. 28. Apart the aforesaid it is apparent from the evidence adduced by the prosecution on record, as discussed above that Mahendra Sharma (P.W. 1) has deposed the distance of the place where he was sitting at the time of incident was from the place of incident was near about 40 to 50 feet and he saw the incident while the Kailash Narayan Shrivastava (P.W. 9) Patwari in his map (Ex. P.18) and deposition said such distance 119 with the averments that there is a wall also at northern side of J. P. Store and at side of road between the flour mill and such Store there is shrubs of “Beshram” of the tall height and on recording the depositions of the Ramnarayan Dubey (P.W. 5) by admitting the existence of said shrubs of “Beshram” has stated such distance 400-500 feet and this witness was not declared hostile. The same thing was stated in the cross-examination by the hostile witnesses, namely, Veer Singh (P.W. 2). Balkishan (P.W. 4) and Jaiprakash Bhadoriya (P.W. 7) that such distance was 400 to 500 feet and tall shrubs of Beshram was there. So from such distance it could not be assumed that person may see the incident and identify the culprits. In such premises, it is apparent that there are two sets of evidence regarding the situation between place of incident and the place where Mahendra Sharma was, as alleged, sitting with Balkishan (P.W. 4) who has not supported the case. So, in view of settled proposition that where on appreciation two sets of evidence are revealed then out of them Court is bound to adopt such set of evidence which is favourable to the accused. So, in such premises also the testimony of eye-witness Mahendra (P.W. 1) on account of long distance from the place of incident and due to northern wall of J.P. Store and the shrubs of “Beshram” is full of suspicious and doubtful and the same could not be the foundation of holding the conviction against appellants. So, in such premises also the testimony of eye-witness Mahendra (P.W. 1) on account of long distance from the place of incident and due to northern wall of J.P. Store and the shrubs of “Beshram” is full of suspicious and doubtful and the same could not be the foundation of holding the conviction against appellants. Our aforesaid view is fully fortified by the decision of the Apex Court in the matter of Harchand Singh v. State of Haryana (1974) 3 SCC 397 : (1974 Cri LJ 366) in which it was held as under :- “11. The function of the Court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the Court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradict and strike at the other and shows it to be unreliable, the result would necessarily be that the Court would be, left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation. 12. Mr. Marwah has cited before us the case of Vadivalu Thevar v. The State of Madras, wherein it was laid down that the Court can base the conviction of the accused on a charge of murder upon the testimony of a single witness if the same was found to be convincing and reliable. There can, in our opinion, be no dispute with the above proposition, but that proposition can be of no avail in the present case. As already mentioned earlier, the prosecution evidence itself creates doubt about the veracity of the testimony of Ram Asra, upon which testimony reliance is now sought to be placed by Mr. Marwah. Had the testimony of Ram Asra been of a convincing character and the prosecution evidence had not itself created doubt regarding the correctness of his testimony, this Court might have sustained the conviction of appellants upon the testimony of Ram Asra. Marwah. Had the testimony of Ram Asra been of a convincing character and the prosecution evidence had not itself created doubt regarding the correctness of his testimony, this Court might have sustained the conviction of appellants upon the testimony of Ram Asra. As the things are, prosecution itself has led evidence to show that the testimony of Ram Asra is not reliable.” 29. In view of the aforesaid discussion, we are of the considered view, that the prosecution has failed to prove the case against the appellants beyond reasonable doubt and in such premises, the approach of the trial Court holding guilty to the appellants for the aforesaid offences being perverse and deserves to be and is hereby set aside. Consequently, by allowing, this appeal, the impugned judgment holding conviction and the sentence against the appellants under the above-mentioned offence are hereby set aside. Pursuant to it, the appellant Nos. 2 and 4 namely Sobran Singh and Surendra Singh are acquitted from the charge of Sections 148 and 302 of IPC levelled against them while appellant Nos. 1 and 3 Kishan Singh and Sugreev Singh are acquitted from the charge of section under Sections 148 and 149, r/w Section 302 of IPC levelled against them. 30. We are apprised by the counsel present that the appellant Nos. 1 and 3 namely Kishan Singh and Sugriv Singh are on bail in the present matter while the appellant Nos. 2 and 4, namely, Sobran Singh and Surendra Singh are facing the awarded jail sentence. Thus, in view of this judgment the bail bonds of appellant Nos. 1 and 3 are hereby discharged while appellant Nos. 2 and 4 are directed to set at liberty, if their presence are not required in any other matter. The amount of fine, if deposited by the appellants or any of them then after verification, the same be refunded to them. 31. The appeal is allowed, as indicated above. Appeal allowed.