- (1.) THIS appeal by special leave arises out of the following facts.
(2.) ONE Lal Singh had three sons, Hari Singh, jaswant Singh and Birbal Singh. Brij Pal singh PW 1, Ved Pal and Gajender Singh are the sons of Birbal Singh whereas Suraj Brian, netar Pal and Satbir Singh are the sons of jaswant Singh and Ram Pal and Ram Saran, the accused are the sons of Hari Singh. Hari singh predeceased his father Lal Singh whereafter the joint land holding was partitioned by Lal Singh between his sons jaswant Singh and Birbal Singh and the sons of Hari Singh deceased in equal shares retaining 18 bighas for himself. About 2-3 years prior to the incident Ram Pal Singh staked a claim that the tube well on the land was his exclusive property on the plea that the electricity connection was in his father's name. Several civil and criminal litigations followed on account of this dispute and certain other matters with the result that the relations between the accused and Birbal singh degenerated to an all time low and about two days prior to the occurrence, an altercation had taken place between Birbal singh and his son Brij Pal Singh on the one side and the accused on the other, relating to the use of the tubewell water. At about 8. 30 a. m. on 20th June 1991, Birbal Singh accompanied by his brother Jaswant Singh and his son Brij Pal Singh left the village to go to Muzaffarriagar for purchase of household articles when they were accosted by the two accused, Ram Pal carrying his licensed dbbl. 12 bore shotgun, and Ram Saran armed with a country made pistol and the accused fired a shot each in quick succession hitting Birbal Singh killing him instantaneously jaswant Singh and Brij Pal Singh saved themselves by lying prone on the ground. The incident was also witnessed by several other persons who were passing by amongst them being Harvir Singh PW 2, Tejvir Singh PW 3, amar Singh and Matroo Singh and on their challenge the assailants ran away. Brij Pal singh PW 1 thereafter rushed to the village, wrote out a report and then went to police station Tetawi six kilometers away from the place of incident in a tractor and handed over the written complaint at 10. 30 a. m. leading to the registration of the FIR. SHO Brij Mohan mishra accompanied by SI Rajinder Singh then reached the place of occurrence whereafter the SI recorded the inquest proceedings relating to the murder. He also picked up a spent cartridge case and wads of a shotgun cartridge and dispatched the dead body for the post-mortem examination. He also conducted a search of the house of ram Pal and Ram Saran on 21 st June, 1981 and recovered a DBBL gun and 10 live cartridges licensed to the former therefrom. The weapon and the cartridge case were sent to the Forensic Laboratory and its report revealed that the cartridge had been fired from the right barrel of the gun in question. On the completion of investigation, the accused were charged for offences punishable under Sections 302/149 IPC and they pleaded not guilty and claimed trial. The Trial Court held that though the relations between the parties were strained on account of several factors yet these differences did not constitute a sufficient reason for the murder of Birbal, the uncle of the accused, and on the other hand Brij Pal singh PW 1 had the motive to implicate the accused in a false case and as such it was appropriate that the eye witness account be examined minutely. The Trial Court then examined the evidence of the eye witnesses pw1 Brij Pal Singh, PW 2 Harvir Singh and pw 3 Tejvir Singh and taking up of the case of PW 1 Brij Pal Singh first, observed that he was the most important witness being the son of the deceased but his testimony was not trustworthy as he and his brother had picked up a woman in the year 1979 for which a criminal case was pending and that another case'relating to the murder of one Nirmal was also pending against him, his brother and their father. The Court also observed that Brij pal Singh had attempted to cheat his brother ved Pal and Gajender Singh and his relatives of the 18 bighas of land left by his grand father lal Singh and was therefore a man of such abysmally low character and mentality that he could not be trusted. The Court then examined the statement of Harvir Singh and found that he was chance and stock witness and as he had earlier been an eye witness in the case of the murder of one Pradhan. The trial Court (on this aspect) observed thus: "it is a very rare chance (sic) a man to be witness of two murders in his life time. In that case Learned District and Sessions judge did not relied (sic) upon the testimony of Harbir and the accused persons were discharged. The photocopy of the judgment dated 16. 1. 1973 passed by learned District and Sessions Judge is available on record. As it is stated above that Harbir is very close to the complainant, deceased and other witnesses. Harbir stood surety against the complainant in the case of girl kidnapping. He stood surety against Vedpal, brother of the complainant and also stood surety against Jaswant, uncle of the complainant in a case under section 107/116. In brief whenever either complainant or his family members were in need of surety, Harbir provided his services. Such a person who has already been a witness in a murder case and he was not relied upon and who is a permanent surety for the party of the complainant could not be relied upon easily". The Trial Court then examined the statement of Tejvir Singh and observed that he too had been closely associated with Brij pal as he had been in college with him in muzaffarnagar and that when Tejvir's uncle karan Singh had been murdered; Jaswant singh had been one of the witnesses and that there was no reason whatsoever as to why tejvir Singh should have been present in that area at the relevant time as he had no field or land in that direction. The court then examined the plausibility of the prosecution story and held that Birbal Singh who was statedly on his way to Muzaffarnagar for purposes of shopping for household goods was a story which could not be believed as he had not been wearing shoes or a cap on his head or a vest under his shirt or an underwear under his dhoti and though there was a tonga service available from the village to Muzaffarnagar he along with the others had still chosen to walk to that place. The Trial court accordingly concluded that it appeared that the deceased had been shot while easing himself and the body had thereafter been taken out by the murderer (s) and put on the boundary of the field. The Court also examined the Forensic evidence and opined that there was no explanation for the presence of an empty cartridge at the spot as only one shot had been fired from each of the two weapons and there was no need for a re-loading of the weapons in that situation. The Trial Court also observed that the time of recovery of weapon being 26 hours after the incident, the Inspector's note about the smell of the gun powder from the right barrel of the gun could not be believed as the smell could not have been present after such a long time. Having held as above the Trial Court acquitted the accused.
(3.) THE State thereafter preferred an appeal before the Allahabad High Court. The Division bench Court reversed the findings and convicted the accused under Sections 302/ 34 IPC and sentenced each of them to imprisonment for life. It is in these circumstances that the present appeal is before us by way of special leave. We have heard learned counsel for the parties very carefully. We are conscious of the oft repeated principle that the High Court should be slow to interfere on a finding of acquittal recorded by the trial court and if the view taken by that Court is possible on the evidence, the High Court should not set it aside on the premise that it was of a different opinion though it is permissible for it to re-evaluate the entire evidence. It is in this background that we must examine the findings of the High Court in the light of the arguments which have been addressed before us by the learned counsel for the parties.;