JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Sri S.N. Tripathi, learned AGA for the appellant-State of U.P., Sri S.K. Pandey, learned counsel for respondent No. 1-accused and perused the record. This government appeal is preferred challenging the validity and correctness of the impugned judgment and order dated 8.7.85 passed by the Sessions Judge, Etah in S.T. No. 536 of 1984 (State v. Jagdish Singh and another). By the impugned judgment, respondents-accused Jagdish Singh son of Deshraj resident of village Bijpur, P.S. Jalesar and Ramvir Singh son of Jai Singh resident of village Ramgarh, P.S. Jalesar, District Etah were acquitted of the offence under Section 302 read with Section 34 IPC. 2. Before proceeding with the hearing on merits we may point out here that during the pendency of appeal respondent-accused Ram Vir Singh son of Jai Singh, resident of village Ramgarh P.S. Jalesar, District Etah is reported by the C.J.M., Etah vide his report dated 15.4.201 to have died in 1998 Therefore, the appeal against him was abated vide order dated 11.7.2013. 3. The prosecution case before the trial Court was that deceased Kunwar Pal Singh, resident of village Mutakpur, P.S. Jalesar, District Etah was father of four daughters and had no male issue. The wife of Kunwar Pal Singh (since deceased) had already pre-deceased him. 4. First informant Janspal Singh was the son of the youngest daughter of Kunwar Pal Singh (since deceased), though he was a resident of village Nagla Sukhdeo but lived with his maternal-grand father, Kunwar Pal Singh since his childhood. Kunwar Pal Singh was having 85 bighas of land with him, out of which he made a gift of 42-1/2 bighas in favour of first informant Janspal Singh about 3 years prior to the incident and with regard to remaining 42-1/2 bighas of land, he also wanted to execute sale-deed with regard to those very 42-1/2 bighas of land each in favour of first informant and his daughter, namely, Smt. Rambeti, which was not liked by the accused and their children. 5. 5. On 23.7.1984 at 9.00 a.m. i.e. a day even prior to the date, on which the sale-deed was to be executed by Kunwar Pal Singh, the accused in furtherance of their common intention committed murder of Kunwar Pal Singh by inflicting knife injuries when he was going for weeding out grass from one of his maize fields and when he reached near the field of Rakshpal Singh in village Mutakpur itself, after catching hold of him there. Kunwar Pal Singh received injuries on his head and neck and, hearing his alarms, the first informant Janspal Singh and his own grand father, Harpal Singh, who was coming to the village aforesaid in search of Janspal Singh himself, reached the place of occurrence, witnessed it and seeing them, both the accused fled away towards the western side. 6. After the accused fled away, the first informant and Harpal Singh went near the body of Kunwar Pal Singh and found that he had died as a result of the injuries. Thereafter, the first informant prepared the written report (Ex.Ka-1) about the occurrence himself and leaving the dead body on the spot in the custody of other persons, went to the police station Jalesar and lodged a report that very day there at 2.00 p.m. 7. On the basis of the said written report a check report was scribed by Head Constable Har Prasad Singh (PW-5) and an FIR was registered by him at Serial No. 129. The investigation was taken up by S.I. Surjan Singh (PW-4).The I.O. recorded the statements of the witnesses, made a search for the accused but they were not traceable. He visited the place of occurrence, prepared the site plan thereof at the insance of first informant, recovered blood stained and plain earth from the place of occurrence, duly sealed them in different phials of plastic in presence of the witnesses and prepared its recovery memo. He also recovered a Khurpi and took it into his custody which was lying near the dead body of Kunwar Pal Singh, which the deceased was taking to his maize field for weeding out grass from the field aforesaid and prepared its recovery memo. He had also prepared a report for sending the blood stained articles to the Chemical Examiner and Serologist. 8. He had also prepared a report for sending the blood stained articles to the Chemical Examiner and Serologist. 8. After inquest the body of deceased Kunwar Pal Singh was sent to the mortuary for post mortem examination through Constables Baladin and Naresh Chandra in District Hospital Sadar, Etah. Autopsy on the body of the deceased was performed by Dr.S.K.Sharma on 24.7.84 at 2.30 p.m. On external examination it was found that rigour mortis was passed off. Decomposition started. Foul smell was present and articles peeled off at places. Abdomen distended. The doctor found following ante-mortem injuries on the person of the deceased. 1. Incised wound 2-1/2 cm. x 1/2 cm. x bone deep on the posterior left jaw, 3 cm. below ear. 2. Incised wound 11 cm. x 4 cm. x vertebral column deep, on the left lateral aspect of the root of the neck, all the external structures cut under the wound. 3. Incised wound 13 cm. x 5 cm. x bone cut on left side of chin and left under part of lower jaw. 4. Incised wound 6 cm. x 1/2 cm. x skin deep on posterior aspect of root of neck. On internal examination, small intestine was found empty while large intestine contained faecal matter sticking to walls. Gall bladder was full and bladder was found empty. The doctor opined that the death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. 9. After completing the investigation the I.O. submitted charge-sheet against both the accused in the Court of III Addl. Munsif-Magistrate, Etah, who vide his order dated 20.12.1984 committed the case for trial to the Court of Sessions where it was registered as S.T. No. 536 of 1984. Charge under Section under Section 302 read with Section 34 IPC was framed against both the accused to which they pleaded not guilty and claimed for trial. 10. In order to substantiate its allegations the prosecution examined seven witnesses, namely, Jas Pal Singh (PW-1), Harpal Singh (PW-2), Constable Baladin (PW-3), the I.O. Surjan Singh (PW-4), Constable Har Prasad Singh (PW-5), Head Constable Panna Lal (PW-6) and Constable Devi Singh (PW-7) whereas the accused persons did not produce any witness in support of their case except documentary evidence whereas the accused persons in their statements under Section 313 Cr.P.C. stated that they were falsely implicated in this case due to enmity. They also denied that Janspal Singh, the first informant ever lived with his maternal-grand father Kunwar Pal Singh (since deceased). After discussing the evidence of the witnesses, the learned Sessions Judge acquitted both the accused vide impugned judgment and order dated 6.7.1985. Aggrieved by the acquittal of both the accused, the State of U.P.- appellant has preferred this government appeal on the ground that the learned Sessions Judge has not weighed and assessed the prosecution evidence properly, hence the judgment of acquittal passed by the trial Court is liable to set aside being against the facts and evidence on record. 11. Sri S.N. Tripathi, learned AGA-I has assailed the impugned judgment of the learned trial Court relying upon the following findings. “As against this, true it is that both the present accused have not led any oral evidence in support of their defence, but from the perusal of their own statements, recorded under Section 313 Cr.P.C. by me, as also from the perusal of Ex.Kha-1 and Kha-2, described in detail as above, filed and proved by and on behalf, as also from the perusal of the facts and circumstances of the case, narrated in detail as above, coupled with the facts of complete failure of the prosecution to prove its story against both the present accused also, it was clearly established that the occurrence had not taken place in the manner, as claimed by the prosecution, and, in fact both the present accused were innocent persons and were falsely implicated in this case on account of enmity, or otherwise, and they were not guilty under Sections 302/34 IPC., on which they were facing their trial before this Court, respectively, and, they both are entitled to be acquitted of the charges, aforesaid, and I hold accordingly. The point is, therefore, decided accordingly and against the prosecution. No other points were pressed or arose for consideration in this case before me. In view of my findings above, the prosecution story fails and both the accused Jagdish and Ramvir Singh, are entitled to be acquitted of the charges under Sections 302/34 IPC., on which they were facing their trial in this Court, respectively, and, I hold accordingly.” 12. No other points were pressed or arose for consideration in this case before me. In view of my findings above, the prosecution story fails and both the accused Jagdish and Ramvir Singh, are entitled to be acquitted of the charges under Sections 302/34 IPC., on which they were facing their trial in this Court, respectively, and, I hold accordingly.” 12. He submits that the learned trial Court based its findings on three circumstances by which it has discredited and undermined the story of prosecution in passing the impugned judgment of acquittal in holding that on the own showing of the prosecution the FIR did not contain the correct version about the occurrence as such it was not reliable. According to him, this finding of the learned trial Court is not only incorrect but it has also not considered the statements of P.W.1 and P.W.2, namely, Janspal Singh and Harpal Singh in correct perspective and committed an error on face of record in holding that the aforesaid witnesses who were examined on facts have given different versions from each other which makes their statements unreliable. 13. It is vehemently argued by him that not only the FIR was prompt but the statements Janspal Singh (PW-1) and Har Pal Singh (PW-2) of the prosecution witnesses prove beyond reasonable doubt that the offence has been committed by the accused persons and any little variations or discrepancies in their statements which were made by them in the trial Court after a considerable period of time would not be fatal to the case of prosecution and furthermore that their statements are fully corroborated and supported by the medical evidence in the case. 14. The second circumstance for discrediting and undermining the prosecution story by the learned trial Court is that it has held that though the alleged incident is of day time and there is direct evidence of the occurrence but as the motive for the crime is not proved, this would by itself is a circumstance to undermine and discredit the prosecution story. 15. 15. Assailing the aforesaid, it is urged by the learned AGA that the learned trial Court has presumed that there was no corroborative evidence that on 24.7.1984 was fixed for execution of the sale-deeds in respect of 42-1/2 bighas of land in favour of Janspal Singh, the son of youngest daughter and remaining 42-1/2 bighas in favour of other daughter Smt. Rambeti; that the Court below assumed that since 85 bighas of land was a considerable property and the Court fees of sufficient amount were needed for execution of the sale-deeds, some attempts could have been made by Kunwar Pal Singh (deceased) for purchasing the same from Tehsil Jalesar at least some days prior to execution of sale-deed and that Har Pal Singh (PW-2) had not given any specific reason for not coming to the house of Kunwar Pal Singh, who had called him on the date of occurrence nor told the names of the persons who had come to call the deceased on that day, is immaterial as it was Kunwar Pal Singh ( deceased), who could have known the reasons for calling Har Pal Singh (PW-2) and no one else who was not told about it. 16. According to him, it has not come on record any where that Kunwar Pal Singh had disclosed this reason to anybody, therefore, the observation of the learned trial Court that the prosecution story was a concocted lie and had no grain of truth in it, moreso, when there is absolutely no evidence on record that the accused were told about it or they came to know that Kunwar Pal Singh (deceased) was about to execute the sale-deeds in respect of his 85 bighas of land on 24.7.1984, cannot be upheld as it is based on presumption and supposition that Kunwar Pal Singh had not informed anybody about the execution of the sale-deeds. Therefore, the finding of the learned trial Court on this aspect to the effect that” it is hard to believe that all of a sudden, they would decide to kill him on the date and time of the occurrence, even when they had no knowledge about the fact that he was going to execute sale-deeds on 24.7.1984" cannot be upheld. 17. 17. Learned AGA lastly submits that third circumstance for acquitting the accused-respondents that the finding of the trial Court that even no independent witness came forward to support the prosecution story even when the occurrence is alleged to have taken place just near the Abadi of village Kutakpur and the villagers heard the alarms raised by the deceased is also based on presumption and supposition. It is stated that the statements of the prosecution witnesses have been wrongly disbelieved by the learned trial Court on the ground that they were partisan and interested witnesses. 18. Per contra, learned counsel for the respondents-accused has submitted that trial Court has given cogent reasons for disbelieving the testimonies of P.W.1 and P.W.2 and has dealt with the facts and circumstances of the case in detail in the impugned judgment. He has supported the judgment by saying that the finding recorded by the learned trial Court is based on material evidence and is not based on presumption or supposition as alleged by the learned AGA. According to him, the evidence on record goes to show that the accused persons were falsely implicated and thus, they have been rightly acquitted by the learned trial Court. 19. After hearing learned counsel for the parties and on perusal of the record we find that the learned trial Court has elaborately dealt with the facts and circumstances of the case as well as the evidence on record to arrive at a finding that the FIR lodged was highly suspicious as it contained incorrect version about the occurrence. As regards the motive of the crime is concerned, the learned trial Court has found that the alleged motive was not found to be proved by the prosecution in the present case. After discussing about the motive, the learned trial Court has gone to the extent of recording a finding that the prosecution story was a concocted lie and had no grain of truth in it.” From perusal of record it appears that the learned trial Court has rightly found it hard to believe that the accused persons all of a sudden would decide to kill Kunwar Pal Singh on the date and time of the occurrence of which they had no fore knowledge or about the fact that he was going to execute sale-deeds on 24.7.1984 at the time of accident. There appears to be force in this conclusion of the learned trial Court. It cannot be said that from before hand the deceased was to go to weed out grass from his maize field, hence the finding of the learned trial Court that they lay in ambush in anticipation appears to be based on reasonable logic. 20. As regards non-production of any independent witness is concerned, it is apparent from the record that all the accused persons and the deceased were relatives and motive was in respect of execution of sale-deed by Kunwar Pal Singh in favour of informant Jans Pal Singh and Smt. Rambeti. Accused and the deceased were not known to the villagers. They may have come forward to depose about the occurrence. 21. Experience shows that independent witnesses normally do not come forward to depose before Courts particularly in cases where murder has been committed. It may be the reason that they may feel insecure for giving evidence in an offence committed by the accused before the Court. In this situation, only those witnesses are available who are family members or the relatives of the accused. Therefore, the trial Court has to proceed with caution in believing and disbelieving their testimonies. When a witness attends Court and deposes before it the Court gathers an impression about his truthfulness from the manner in which he has made statement and answered the queries of the opposite parties and the Court. 22. We find from the facts and circumstances of the case that not only no independent witness has been examined in this case but even the prosecution witnesses namely, Jans Pal Singh (PW-1) and Har Pal Singh (PW-2) have made contradictions on material aspect of the matter. These contradictions have been discussed in detail by the trial Court in the impugned judgment and found that the presence of P.W.1 and P.W.2 at the place of occurrence was doubtful and unreliable. The prosecution story about the manner of occurrence in which it is said to have taken place, disclosed in the FIR appears to be twisted and subsequently developed by the testimonies of prosecution witnesses. For all the reasons stated above, we uphold the findings recorded by the trial Court in the impugned judgment. To our mind, it has rightly acquitted the respondents-accused of the charge under Section 302/34 IPC. For all the reasons stated above, we uphold the findings recorded by the trial Court in the impugned judgment. To our mind, it has rightly acquitted the respondents-accused of the charge under Section 302/34 IPC. The reasons given by the learned trial Court is cogent and view taken by it is possible one. The judgment impugned in the facts and circumstances stated above, is upheld and the Government Appeal is accordingly, dismissed. —————