Makhan Singh and Others vs State of Uttarakhand

U.C. Dhyani, J.—This appeal, preferred u/s 374 of the Code of Criminal Procedure, 1973 (for short Code of Criminal Procedure.), is directed against the judgment and order dated 27.06.2003, passed by Addl. Sessions Judge/III F.T.C., Nainital in Sessions Trial No. 51 of 2000, whereby accused/Appellant Sanjay Singh is convicted u/s 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.) in Sessions Trial No. 51 of 2000, and sentenced to imprisonment for life. He is further convicted u/s 25 of the Arms Act, 1959 (in Sessions Trial No. 52 of 2003), and sentenced to simple imprisonment for a period of six months. The other three accused/Appellants Makhan Singh alias Tara Singh, Santosh Singh (since deceased) and Kishan Singh have been convicted u/s 302 read with Section 34 of I.P.C., and each one of them has been sentenced to imprisonment for life. During the pendency of this appeal, accused/Appellant Santosh Singh are reported to have died, and therefore, appeal filed on his behalf stands abated.

Heard Learned Counsel for the Appellants, learned Addl. Government Advocate for the State and Learned Counsel for the complainant and perused the lower court record.

Prosecution story, in brief, is that accused/Appellant Sanjay Singh and his father accused/Appellant Santosh Singh are both residents of village Lalitpur, police station Ramnagar, District Nainital. Accused/Appellant Kishan Singh is father of accused/Appellant Makhan Singh alias Tara Singh and both are residents of village Beria, police station Ramnagar. Sitaram (deceased) was resident of Shaktinagar, T.V. Tower, police station Kashipur, District Udham Singh Nagar. Murari Lal (informant) is son of Sitaram (deceased). Before the date of incident, Sitaram (deceased) had deposed against accused/Appellant Kishan Singh in a criminal case going on between accused/Appellant Kishan Singh and one Ram Charan. There was some land dispute between one Dharnidhar Sharma and accused/Appellant Santosh Singh. Accused/Appellant Santhosh Singh had a grudge against Sitaram (deceased) that he had aligned with Dharnidhar Sharma and used to help him. Before the date of incident Sitaram (deceased) had taken a field on contract from one Medha Singh and planted sugarcane on said field in partnership with Dalveer Singh and Gurdayal Singh. On 01.01.1999, in the afternoon, after harvesting, the sugarcane was being loaded in a tractor trolley. The driver of the tractor Balbir Singh and owner of the tractor Gurdayal Singh were also present on the field. At 12:30 P.M., accused/Appellants Kishan Singh, Makhan Singh alias Tara Singh, Santosh Singh (since deceased) and Sanjay Singh along with their associates came on the field. Accused/Appellant Kishan Singh, armed with ballam; accused / Appellant Sanjay Singh, armed with a gun; accused/Appellant Makhan Singh alias Tara Singh, armed with lathi; and accused/Appellant Santosh Singh, armed with tabal (a sharp heavy edged weapon) started abusing Sitaram and rushed to assault him, on which Sitaram started running in order to save himself. All the accused/Appellants followed him upto 100 meters, and after surrounding him, assaulted Sitaram with the weapons they were carrying. Sitaram fell down on the ground in injured condition. By the time people from neighborhood assembled there, the assailants after firing, fled from the scene of occurrence. After receiving information about the incident from Dalvir Singh, Murari Lal reached the place of incident. Sitaram was taken to the hospital, where he was declared brought dead. The first information report (Ext. Ka-1) of the incident was lodged by Murari Lal, son of Sitaram (deceased), with police station, Ramnagar, on 01.01.1999 i.e. on the same day of incident.

The police took the dead body in their possession, and prepared inquest report (Ext. Ka-2) and other necessary papers, and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. S. Ahmed (P.W.5) on 02.01.1999, at 11:00 A.M., who prepared autopsy report (Ext. Ka-4). The Medical Officer found three ante mortem injuries including the gunshot injury on the body of the deceased, and opined that the deceased had died of shock and hemorrhage as a result of ante mortem injuries. The investigation was taken up by P.W. 7 Station House Officer Room Singh Yadav. All the four accused/Appellants were arrested on 03.01.1999. A country made pistol of 315 bore (Ext. I) with two live cartridges (Ext. II and Ext. III) were recovered from accused/Appellant Sanjay Singh. A memorandum of recovery (Ext. Ka-3) was got prepared in the presence of the witnesses. After completing the investigation, charge sheet (Ext. Ka-16) was filed against the accused/Appellants Kishan Singh, Makhan Singh alias Tara Singh, Santosh Singh and Sanjay Singh, relating to offences punishable u/s 302 of I.P.C. A separate crime relating to offence punishable u/s 25 of the Arms Act was registered after recovery of the country made pistol from accused Sanjay Singh, which was also investigated, and a separate charge sheet (Ext. Ka-19) was filed after obtaining necessary sanction (Ext. Ka-8) from the District Magistrate, Nainital, in respect of said offence. After interrogating the witnesses, and on completion of investigation, the Investigating Officer submitted both the charge sheets (Ext. Ka-16 and Ext. K-19) against the accused Makhan Singh alias Tara Singh, Kishan Singh, Santosh Singh and Sanjay Singh, for their trial in respect of offences punishable u/s 302 of I.P.C., and one relating to offence punishable u/s 25 of the Arms Act, against accused Sanjay Singh.

The Magistrate, on receipt of both the charge sheets, after giving necessary copies to the accused, as required u/s 207 of Code of Criminal Procedure., committed the case to the court of sessions for trial. Learned First Addl. Sessions Judge, Nainital on 12.07.2000, after hearing the parties, framed charge for the offence punishable u/s 302 read with Section 34 of I.P.C., and another charge of offence punishable u/s 25 of the Arms Act against the accused/Appellant Sanjay Singh, who pleaded not guilty and claimed to be tried. The other three accused/Appellants were charged for the offence punishable u/s 302 read with Section 34 of I.P.C., and they too pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Murari Lal (informant and son of the deceased); P.W. 2 Hari Om (witness of preparation of inquest report); P.W. 3 Gurdayal Singh (eyewitness); P.W. 4 Constable Arun Kumar (witness of preparation of recovery memo); P.W. 5 Dr. S. Ahmed (who conducted the postmortem examination); P.W. 6 Dalvir Singh (another eyewitness); P.W. 7 Station House Officer Room Singh Yadav (Investigating Officer) and P.W. 8 Sub Inspector Rajaram Gupta (who investigated the case relating to 25 Arms Act, and submitted subsequent charge sheet). The oral and documentary evidence was put to the accused u/s 313 of Code of Criminal Procedure., in reply to which they alleged the same to be false and stated that they have been falsely implicated in the crime. No evidence in defense was adduced on behalf of the accused. The trial court, after hearing the parties, found accused/Appellant Sanjay Singh guilty of charge of offence punishable u/s 302 of I.P.C., and one punishable u/s 25 of the Arms Act. It further found remaining three accused, namely Makhan Singh alias Tara Singh, Kishan Singh and Santosh Singh guilty of offence punishable u/s 302 read with Section 34 of I.P.C. After hearing the parties, the trial court sentenced convict Sanjay Singh to imprisonment for life u/s 302/34 of I.P.C., and simple imprisonment for a period of six months u/s 25 of the Arms Act. Each one of the remaining accused, namely Makhan Singh alias Tara Singh, Kishan Singh and Santosh Singh was also sentenced to imprisonment for life u/s 302 read with Section 34 of I.P.C. Aggrieved by said judgment and order dated 27.06.2003, the convicts preferred this appeal.

Before proceeding for further discussion, we think it just and proper to mention here the ante mortem injuries found on the body of deceased Sitaram by P.W. 3 Dr. S. Ahmed, on 02.01.1999, at 11:00 A.M., who prepared the autopsy report (Ext. Ka-4). The same are being reproduced below:

i) Firearm wound of entry 1.25 cm X 1 cm, communicating to injury No. (ii) on he right side face just outer and below the right eyebrow. Margins of wound are inverted. Blackening and tattooing present around the margins of wound.

ii) Firearm wound of exit 3 cm X 3.5 cm on his occipital region of head, communicating to injury No. (i). Margins of wound are averted and lacerated.

iii) Contusion 2.5 cm X 3 cm on the right cheek, 2 cm in front of right ear.

iv) Incised wound 6 cm X 2 cm X scalp deep on the top of head, 9.5 cm above the bridge of nose.

v) Lacerated wound 2 cm X 2cm on the pinna of right ear.

vi) Blackening of left upper eyelid present.

The Medical Officer opined in the autopsy report that deceased had died of shock and hemorrhage as a result of ante mortem injuries.

To re-visit FIR in order to appreciate the role assigned to the accused persons, it would be worthwhile to mention here that two fathers and two sons are allegedly involved in the crime. Kishan Singh (father), his son Makhan Singh; Santosh Singh (father) and his son Sanjay Singh is the combination of father-son duo. The first combination had ballam and lathi, second combination had tabal and firearm in their hands. Kishan Singh inflicted injuries on the victim with ballam, Makhan Singh with lathi, Santhosh Singh inflicted injuries on the victim with tabal and Sanjay Singh fired at Sitaram resulting into his death.

The witnesses cited in the FIR are Dalvir Singh and Gurdayal Singh. The incident which took place on 01.01.1999 at 12:30 P.M. was reported to the police station, Ram Nagar on 01.01.1999 at 04:45 P.M. The distance between the place of occurrence and the police station is about 15 kilometers, hence there appears to be no delay in lodging the FIR.

Learned Additional Sessions Judge in his judgment has mentioned the contents of FIR and has said that the informant Murari Lal who happens to be the son of the deceased, got the report (Ext. Ka-1) typed and it was handed over at police station Ram Nagar. The FIR contains the names of all the accused persons along with their parentage. He is not the eyewitness. The typing mistake which occurred in FIR is as regards gun/country made pistol. The fact is that accused Sanjay Singh had country made pistol in his hands whereas in the FIR the gun has been mentioned in his hands. Learned Additional Sessions Judge has attributed this error as a typing mistake.

Elaborating on the ocular testimony of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh, the learned trial court has commented upon that there appears to be no reason as to why P.W. 3 Gurdyal Singh will tell a lie against the accused persons. It has also turned down the suggestion of the defense that this witness was under the influence of son of deceased Sitaram. Learned Addl. Sessions Judge has mentioned that P.W. 6 Dalvir Singh is the grandson of P.W. 3 Gurdayal Singh. He also does not have any enmity with the accused persons. His testimony cannot be brushed aside only on the ground that he had harvested sugarcane crop with deceased Sitaram. The oral testimony of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh has been corroborated by the medical evidence of P.W. 5 Doctor S. Ahmed, who has also made clear that the death of the deceased Sitaram is possible on 01.01.1999 at 12:30 P.M. and can be sustained by firearm, tabal and lathi, according to the trial court.

Learned Addl. Government Advocate has submitted that accused/Appellant Makhan Singh is the son of accused Kishan Singh. He is named in the FIR. He is stated to have lathi in his hands. His father had enmity with the deceased Sitaram. Sitaram had deposed against Kishan Singh. P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh have deposed that there was lathi in the hands of the accused Makhan Singh. Injury Nos. (iii) & (v) in the post-mortem report suggests blow of lathi on the body of the deceased, therefore, his participation in the crime is more than proved. Learned Addl. Government Advocate has also submitted that it is true that post-mortem report (Ext. Ka-4) does not indicate any injury inflicted by ballam. Since this accused has shared common intention with other accused, therefore, even if it is conceded for the sake of arguments that there was no blow of ballam on the body of the deceased, that itself will not absolve Kishan Singh of his criminal liability. It is not necessary that every blow inflicted upon the victim must indicate the injury. It is also possible that the blow of ballam might not have hit the victim. But the fact remains that all the four accused were in inimical terms with the deceased Sitaram. They came to the place of occurrence only with this intention of eliminating Sitaram, as they had enmity with Sitaram and therefore, they shared the common intention. Therefore, the prosecution story against accused/Appellant Kishan Singh is also proved u/s 302/34 of I.P.C.

It is also submitted by learned Addl. Government Advocate that accused Sanjay Singh is son of Santosh Singh and is named in the FIR. The witnesses have deposed against him saying that he had a country made pistol. Firearm injury was found on the body of Sitaram. The Investigating Officer found empty shell at the place as shown in the site plan. When the accused Sanjay was arrested a country made pistol of 315 bore and two cartridges were found in his possession. The ballistic expert report (Ext. Ka-21) suggests that the empty shell was used in this country made pistol which was recovered from the possession of accused Sanjay Singh. It is further submitted that accused/Appellant Santosh Singh is father of the accused Sanjay Singh, who is also named in the FIR. The testimony of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh confirms the presence and participation of this accused in the crime, which had used tabal in order to perpetrate the crime. The post-mortem report (Ext. Ka-4) also suggests that injury No. (iv) is inflicted by tabal. Therefore, the prosecution story against this accused also stands proved beyond reasonable doubt. Thus, there is evidence of two disinterested witnesses supported by the medical evidence. They are named in the FIR, the occurrence took place during day hours, accused persons had enmity with the deceased, informant was not present on the spot, P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh had no grudge against the accused persons so as to indicate their false implications. All the accused persons were known to the witnesses before this incident had taken place. There is every reason to believe that the accused and the accused persons only have committed this heinous crime. The motive to commit the murder is also there. There is no material inconsistency in the oral testimony of the witnesses. Minor variations here and there, as indicated by the Learned Counsel for the accused/Appellants, are natural variations and are bound to occur in the oral testimony. All the more the same confirms the fact that they were not tutored witnesses. FIR is also not unreasonably delayed, so as to create doubt on the authenticity of its contents.

Lastly, learned Addl. Government Advocate also contended that since P.W. 1 Murari Lal (informant and son of the deceased) has disclosed at page No. 3 of his cross-examination in fourth paragraph that informant''s father had disclosed him that he (father) had deposed against Kishan Singh and in favour of Ram Charan Singh and P.W. 6 Dalvir Singh has stated in his cross-examination at page 11 that Sitaram and accused persons were inimical to each other because Sitaram had deposed against them in a land dispute, therefore, there was sufficient reason (motive) with the accused persons to have inflicted blows on the victim, which ultimately resulted into his death. It is to be noted here that enmity is a double-edged weapon. If there is motive for the accused persons to have committed murder of Sitaram there is every possibility that Sitaram and his associates might also falsely implicate the accused persons.

It is contended by the Learned Counsel for the accused/Appellants that there is variation as regards gun/country made pistol in the FIR and ocular evidence. The informant, in his oral testimony before the court, has stated that the accused Sanjay Singh was armed with country made pistol. It appears that the prosecution has improved upon the informant''s version.

Accused/Appellant Santosh Singh is said to have tabal in his hands, whereas in the cross-examination he has stated that it is very difficult to say whether accused Santosh Singh had tabal or ballam in his hands (both are sharp edged weapons). When P.W. 3 Gurdayal Singh entered into the witness box on 10.07.2011, he has stated that Santosh Singh was having tabal. Two years hence, when he came for cross-examination, he said that Santosh Singh was having ballam.

The informant got the incident typed written and then signed over the paper. It was not necessary for the prosecution to have produced the person who had typed the letter addressed to the police. The evidence of scribe was not necessary. No doubt, there has been some delay in sending the empty shell and country made pistol to Forensic Science Laboratory, Agra, but that is hardly a fact to be reckoned with in favour of the accused persons.

The FIR is not ante timed, in as much as the police which came on the spot immediately after the incident took place belongs to chowki Peerumadara and that is why the police met P.W. 3 Gurdayal Singh and P.W. 4 Constable Arun Kumar (witness of preparation of recovery memo) on the spot when the informant was coming back from Sher Singh''s house. The case was registered at police station Ram Nagar.

Another argument advanced on behalf of the accused/Appellants is that they have been falsely implicated because of Dharnidhar Sharma. It is amply clear from the statement of P.W. 1 Murari Lal that a dispute of land between Dharnidhar Sharma and accused Santosh Singh was pending. Criminal cases between them were also instituted. General Diary (Ext. Ka-6) has also mentioned that Dharnidhar Sharma also accompanied the informant Murari Lal to the police station for lodging the FIR.P.W.1 Murari Lal has admitted friendship between his father and Dharnidhar Sharma and on account of this relationship Dharnidhar Sharma accompanied his friend Murari Lal who had lost his father. Possibility of naming the accused at the instance of Dharnidhar Sharma cannot be ruled out.

Yet another argument advanced by the Learned Counsel for the accused/Appellants were that Medha Singh has not been produced in evidence. It is alleged that Medha Singh''s field was taken by the deceased Sitaram on contract. It was desirable for the prosecution to have produced Medha Singh as a witness.

It was also contended on behalf of the accused/ Appellants that there is no independent witness to show that it was Nishan Singh''s field. This fact is not in issue and therefore, the same omission has no bearing on the merits of the case.

It was also argued upon that no witness of the vicinity has been produced by the prosecution. We are of the view that since two witnesses who have been produced by the prosecution are found wanting in trust and confidence, and therefore, it needed support from the people of vicinity.

Yet another point raised on behalf of the accused/Appellants is that witness Shamsher Singh has also not been produced in evidence. Shamsher Singh''s name came into the light when P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh went to Shamsher Singh to inform the son of the deceased on telephone. Shamsher Singh''s telephone was used by P.W. 6 Dalvir Singh to make Murari son of deceased Sitaram aware about this incident. This argument has substance that had Shamsher Singh been examined his evidence would have carried weight u/s 6 of the Indian Evidence Act.

Learned Counsel for the accused/Appellants have also placed the ruling of the Hon''ble Supreme Court in the case of Vadivelu Thevar Vs. The State of Madras, , in which it was observed as follows:

The Indian legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognized maxim that "Evidence has to be weighed and not counted. ...

Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.

This judgment is relevant for the case, as would be evident from discussions hereafter.

The rulings of Dinesh and Anr. v. State of Haryana XIVL 2002 ACC 199 SC and Smt. Bimla Devi v. State of Haryana VIL 2003 ACC 990 SC were also referred to by the Learned Counsel for the accused persons to show that the prosecution story is falsified on grounds, inter alia, that the prosecution evidence is silent on the injury of ballam. The cause of death is firearm injury and therefore, testimony of the prosecution witnesses is contrary to the medical evidence. All the four accused are alleged to have used their weapons. We are of the view that in the background of the facts and ocular evidence produced therein, the argument holds water and helps the Appellants.

Emphasis was also laid on the point that the laborers, who were harvesting the crop, have also not been produced. This argument carries weight and hence goes in favour of the accused in as much as the testimony of two witnesses thus produced could not inspire confidence.

One of the principal arguments placed on behalf of the accused/Appellants is that there is change of place of occurrence. It was contended that Sitaram, according to the prosecution story, was allegedly inflicted injuries in the field of Nishan Singh but when the informant came to the place of occurrence, then he found the body of the deceased in the field in which sugarcane was being loaded. It is the contention of the Appellants as to who brought the body of deceased Sitaram from Nishan Singh''s field to the place where the sugarcane was being loaded. The witnesses who brought back deceased Sitaram''s dead body have not been produced in evidence. P.W. 6 Dalvir Singh has deposed that he had gone to Shamsher Singh''s residence for conveying on telephone and when he came back, he saw that Sitaram''s dead body was shifted from Nishan Singh''s field to the field where the sugarcane was being loaded. The Investigating Officer found shells and blood in the field of Nishan Singh. The witnesses have also cited Sitaram having been killed in the field of Nishan Singh and in the circumstances, how the body of Sitaram shifted from one place to another was assumes significance.

It will be worthwhile to recapitulate that evidence tendered by the eyewitnesses as below:

P.W. 3 Gurdayal Singh who is said to be one of the eyewitness''s alongwith P.W. 6 Dalvir Singh has supported the prosecution story in his examination-in-chief. This eyewitness has said that he and his grandson Dalvir Singh alongwith Sitaram and two laborers were loading the sugarcane in the trolley and then this incident occurred. In the cross-examination he has stated that a case under TADA was roped in against him. He knew Shamsher for the last 5-10 years. Sitaram was a cloth merchant at Kashipur. He started plugging this field at the instance of Sitaram. He does not know about the villagers in the vicinity of the place of occurrence. In his cross-examination, he has stated that the place of occurrence is surrounded by nalas (rivulets) which are the tributaries of river Kota. He is aged about 70-75 years. He has denied that he has given an affidavit in Haldwani court that he has not seen anybody committing murder of Sitaram. There is only one road where a vehicle can approach the field, where the occurrence took place. He accompanied his grandson Dalvir to Shamsher Singh''s place from where Dalvir rang up to the son of deceased. Again, he reached the place of occurrence and by then the police had already arrived. Son of Sitaram reached their afterwards. Police chowki is situated at about 5-6 kilometers and Shamsher Singh''s residence is about 2 kilometers away from this field. He did not go to the hospital. Instead he alighted at Pirumadara. He did not go to the police station either. Some 20-50 people had assembled on the spot. Sitaram was shot dead at Nishan Singh''s field.

This witness P.W. 2 Gurdayal Singh has introduced revolver to say that Sitaram was fired at by this weapon. According to him the accused persons were chasing Sitaram and he saw the incident from a distance of 15-20 paces. He knows the difference between gun and country made pistol but does not know the difference between revolver and country made pistol. The blood dropped on the field where Sitaram had fallen.

It will be pertinent to mention here that P.W. 1 Murari Lal (informant) has disclosed in this cross-examination that his father had told him that Medha Singh gave the land on batai/contract to Gurdayal Singh and Dalvir Singh. No written document was prepared in relation thereto. His father had tendered evidence against Kishan Singh and in favour of one Ram Charan Singh. When he reached the spot, the police had already arrived there.

P.W. 6 Dalvir Singh, who is another eyewitness alongwith his grandfather Gurdayal Singh has supported the prosecution version, but has introduced a new and astonishing fact that when he alongwith his grandfather came back from Shamsher Singh''s residence after informing Murari Lal s/o deceased Sitaram on telephone, the villagers brought back Sitaram''s dead body to the field where the sugarcane was being loaded (Medha Singh''s field). Those who brought back the dead body of Sitaram have not been produced in evidence. Why they did so has not been explained? At whose instance this was done also goes unexplained. What was the necessity of bringing back that corpse to the original place is also not explained? Why this fact has not been put forward by his grandfather P.W. 3 Gurdayal Singh? Why somebody will shift the dead body from a place where the murder was committed to a place from where the Appellants started chasing the deceased? The site plan (Ext. Ka-11) shows the place ''A'' (Medha Singh''s field) where Sitaram was standing and place ''A1'' (Nishan Singh''s field) where the victim was shot dead. The site plan nowhere suggests that the dead body was brought back to place ''A''. These two witnesses cannot be said to be disinterested witnesses because P.W. 6 Dalvir Singh has admitted in his cross-examination at page No. 5 that Sitaram had called him alongwith his grandfather Gurdayal Singh for loading of sugarcane. They had sown the sugarcane in partnership on batai. He has also stated that it was Sitaram who called and accompanied them. The laborers who were working on the field have not been produced in evidence. There is yet another glaring omission in the prosecution story that at page 12 of the cross-examination this witness P.W. 6 Dalvir Singh has stated that the site plan was not prepared in his presence. He has also stated in the cross-examination that he knows the difference between the gun and country made pistol. P.W. 7 S.O. Room Singh Yadav on the other hand at paragraph 5 says that he is taken the statement of witnesses Gurdayal Singh and Dalvir Singh on 02.01.1999, and prepared site plan. Cross-examination of the Investigating Officer on the site plan (Ext. Ka-11) so far as it relates to place ''A'' and ''A1'' may be seen at paragraph 17 and paragraph 18. Learned Counsel for the accused/Appellants had already pointed out the contradiction in the prosecution story wherein gun is shown in FIR, where as the witnesses have said that accused Sanjay Singh was having country made pistol in his hands.

There is yet another improbability in the prosecution story in the sense that the son of the deceased, after seeing the dead body of his father goes to police station instead of hospital for providing medical aid. The dead body was taken to hospital by those two alleged eyewitnesses i.e. P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh. The conduct of son appears to be somewhat unnatural. Further the conduct of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh also shows that they are interested witnesses.

The son has not said anything regarding shifting of the corpse. There is no evidence to suggest that Nishan Singh rebuked those who left the dead body in his field and asked them to take away that dead body to another place.

This is also not the case of the prosecution that Sitaram while alive, came back to the field of Medha Singh. Who then brought back the dead body? It was not important to have produced Nishan Singh to show that he is the owner of the land, but his testimony assumes significance whether he wanted the body to be removed at an early instance? Who has shifted the body and why? What is the evidence in respect of that? Why should the court believe such an evidence of prosecution witnesses.

From the inquest report, it appears that the same was prepared at the hospital, where the deceased was brought dead. According to prosecution story, the deceased went to the field of Medha Singh for harvesting sugarcane. Apart from oral testimony of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh, there is nothing on record, on the basis whereof, court can come to a conclusion that, in fact, the deceased had gone to the field of Medha Singh at or immediately before he was assaulted. According to P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh, deceased had taken the field of Medha Singh on contract. According to P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh, they were also present at the field of Medha Singh, along with the deceased, for P.W. 3 Gurdayal Singh had an arrangement with the deceased in respect of cultivation on the field of Medha Singh, taken by the deceased on contract. These statements could easily be corroborated either by producing Medha Singh or by producing the contract between Medha Singh and the deceased, if any, along with the arrangement between the deceased and P.W. 3 Gurdayal Singh, if any. This was not done. Therefore, there is nothing to show that at or immediately before the incident, either the deceased or P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh had any occasion to be present at the field of Medha Singh. It is the P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh, who phoned up, from the place of Shamsher Singh, the son of the deceased about the death. Both of them had to go to the place of Shamsher Singh. Both of them returned together. The death of the deceased, however, did not take place in the field of Medha Singh. It took place in the field of Nishan Singh. When they returned from the place of Shamsher Singh, the dead body of the deceased was lying in the field of Medha Singh. P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh did not make any inquiry what was the reason for bringing back the dead body. They did not try to ascertain who were the people, who brought back the dead body. P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh, then, took the dead body to the hospital and the son of the deceased went to the Police Station for lodging the First Information Report. Unless compelled to believe the testimony of the son of the deceased and P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh, there is nothing on record from where one could gather that, in fact, the deceased had gone to the field of Nishan Singh, the deceased died there and, thereupon, his dead body was brought back to the field of Medha Singh. Each of these aspects could be corroborated by producing Medha Singh or by producing the contract/arrangement. It could be also corroborated by producing the truck driver and the truck owner and the laborer, who were engaged for the purpose of harvesting sugarcane. Nishan Singh could be produced also to corroborate that the actual incident of assault took place at his field. The person, who helped the body of the deceased to be brought back to Medha Singh''s field from Nishan Singh''s field, could prove the factum of bringing back the body and also the reason in support thereof. It is not necessary that there shall be a large number of witnesses to prove a particular fact, but it is necessary to produce evidence, which will prove a particular fact. The fact of bringing back the dead body from the field of Nishan Singh to the field of Medha Singh has not been attempted to be proved. In the absence thereof, it is difficult to accept the version of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh that the assault took place in the field of Nishan Singh. In a situation of this nature, reliability of the evidence of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh becomes doubtful. Even if they cannot be said to be wholly unreliable, they are certainly neither wholly reliable nor wholly unreliable. In those circumstances, it was obligatory on the part of the prosecution to bring on record wholly reliable evidence suggesting presence of the deceased at Medha Singh''s field, his assault at Nishan Singh''s field and his body returning to Medha Singh''s field. As aforesaid, it was not impossible to corroborate the same. No attempt was made by the prosecution to corroborate the same. Similarly, in the absence of Shamsher Singh and establishment of the fact that Shamsher Singh had a telephone, if one has to believe that P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh informed the incident to the son of the deceased, the Court has to believe the testimony of these three persons. In other words, the whole story is built up on the basis of the evidence of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh, who otherwise had no occasion to be present at the field of Medha Singh and, accordingly, had no occasion to watch the deceased being assaulted in the field of Nishan Singh.

The Court, in the circumstances, cannot be compelled to accept the prosecution story solely relying upon the testimony of P.W. 3 Gurdayal Singh and P.W. 6 Dalvir Singh and the son of the deceased. The Appellants are, therefore, entitled to benefit of doubt. Hence, the appeal against their conviction u/s 302 read with Section 34 of I.P.C. succeeds.

So far as the case against accused Sanjay Singh u/s 25 of Arms Act is concerned, P.W. 7 Room Singh Yadav (Investigating Officer) has deposed that when he was going with other police personnel on 01.01.1999, a country made pistol of 315 bore and a cartridge was recovered from his possession. The evidence of P.W. 7 Room Singh Yadav is supported by the testimony of P.W. 4 Arun Kumar and therefore, his conviction u/s 25 Arms Act sustains. FIR was lodged against the accused Sanjay Singh alias Sanju u/s 25 Arms Act. Charges were framed against the accused Sanjay Singh in respect of offence punishable u/s 25 of Arms Act. Prosecution sanction to proceed u/s 25 of Arms Act was granted by District Magistrate, Nainital on 08.03.1999 (Ext. Ka-18). Site plan (Ext. Ka-17) was prepared by Investigating Officer on 15.01.1999. (+) is the place shown in the site plan where the country made pistol and cartridges were recovered from the possession of the accused. Recovery memo (Ext. Ka-3) which is dated 03.01.1999 mentioned that on 03.01.1999 when the police personnel, Head Constable Hari Om Sharma and Constable Arun Kumar were going towards Haldwa Barrier and reached at Lalitpur turn, three persons tried to stop the vehicle presuming it to be a private vehicle. S.O. Room Singh Yadav directed the driver of the vehicle Ramesh Chandra to stop the Gypsy. Those three persons were surprised and tried to run away towards Lalitpur village. They were chased and apprehended. One country made pistol and two cartridges 315 bore were recovered from the possession of Sanjay Singh alias Sanju S/o Santhosh Singh.

Sanjay confessed that he had committed murder of Sitaram on 08.01.1999 and with this country made pistol and the empty shell was thrown on the spot. The other two persons were Makhan Singh and Kishan Singh. All the three persons were arrested. Nothing was recovered from the possession of Makhan alias Tara Singh and Kishan Singh. Since it was night (20:15 hrs) therefore, no public witness was available. The recovery memo was prepared in the light of the torch. The recovery memo bears the signature of Sanjay Singh. P.W. 7 S.O. Room Singh in para 8, page 3 of his oral evidence has stated that on 03.01.1999, when the accused Sanjay Singh was arrested, a country made pistol 315 bore and two cartridges were recovered from his possession. Consequently, recovery memo (Ext. Ka-3) was prepared and case u/s 25 Arms Act was instituted against the Sanjay Singh alias Sanju. He could not show any license to keep these items in his possession. P.W. 7 S.O. Room Singh has also proved chik (Ext. Ka-13) and copy of G.D. (Ext. Ka-14). This witness was subjected to cross-examination wherein, inter-alia, he was said that he had arrested Sanjay himself on 03.01.1999. The country-made pistol was sent to Forensic Science Laboratory, Agra, a reference of which is given in supplementary C.D. He has also given reference of country made pistol and two cartridges Ext. 2 and Ext. 3 in his evidence.

P.W. 8 S.I. Raja Ram Gupta has proved prosecution sanction (Ext. Ka-18). In the cross examination, this witness has stated that he was given the investigation of this case on the day the accused was arrested. The case property remained in police station Ramnagar till the prosecution sanction was granted. There is no space in Sadar Malkhana, Nainital for keeping case property. P.W. 4 constable (1225) Arun Kumar in his examination has stated on oath that a country-made pistol 315 bore and two cartridges 315 bore were recovered from the possession of accused Sanjay Singh alias Sanju s/o Santosh Singh, village Lalitpur, police station Ramnagar and he had confessed that he had committed murder of Sitaram s/o Govind Ram on 01.01.1999. Since these were odd hours and therefore, public witness could not be procured. In his cross examination, he had said that the country made pistol was recovered after two days of the date of incident and the recovery memo was prepared in the light of torch. This witness has proved country made pistol (Ext. Ka-1) and live cartridge (Ext. 2 & Ext. 3) in his cross-examination (para 10) and also said that the country made pistol was functional (in working condition).

No arguments were advanced in respect of this offence u/s 25 Arms Act before us. We have however gone through the record and considered probable arguments which could have been advanced on behalf of Appellant Sanjay. We are of the view that because of odd hours it was not possible to procure the attendance of public witness. The oral testimony of police witnesses is such that their version cannot be disbelieved, so far as offence punishable u/s 25 Arms Act is concerned. So we are of the view that the trial court has rightly convicted accused Sanjay Singh alias Sanju u/s 25 Arms Act. Since, there is no State appeal for enhancement of sentence, therefore, we are inclined to maintain the one awarded by learned Addl. Sessions Judge in respect of Section 25 of Arms Act.

Accordingly, the appeal is partly allowed. The conviction and sentence recorded by the trial court against the accused/Appellants Makhan Singh alias Tara Singh, Kishan Singh and Sanjay Singh in respect of offence publishable u/s 302 read with Section 34 of I.P.C. is set aside. They are acquitted of the said charge. Accused Appellants Makhan Singh alias Tara Singh and Kishan Singh are on bail. They need not surrender. However, conviction of accused/Appellant Sanjay Singh for the offence publishable u/s 25 Arms Act is maintained. To that extent his appeal is dismissed. He is on bail. His bail is cancelled. He shall surrender before the trial court to serve out the remaining part of the sentence. The period already undergone by the accused/Appellant Sanjay Singh during investigation, trial and pendency of this appeal shall be set off. Appeal of accused/Appellant Santosh Singh stands abated. Lower court record is sent back.