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2. The case of the prosecution is that there was a dispute between the parties on account of boundary of land and about 20 days prior to the incident, an altercation has taken place between deceased Ramesh and the appellants Balwant Singh and co-accused Bittu Singh. On the day of incident, i.e. on 09.04.2001, at 5:15 PM complainant's younger brother Ramesh (deceased) had gone to his land and while returning from there, at around 6:00 PM, all the accused persons met him in the way. Appellant Balwant Singh was having a sword, Bittu Singh was having a rod while Kala Singh was having a 'barchi' and Smt. Mahendro Bai was standing at some distance. After seeing Ramesh, appellant-accused Smt. Mahendro Bai hurling abuses, exhorted her husband and sons to kill the deceased. Co-accused Bittu Singh and appellant Kala Singh attacked the deceased with sword, rod and barchi with intention to kill him. Hearing noise, one Balkar Singh, Ranga Singh and many other persons reached there but the appellants ran away towards jungle. Ramesh sustained injuries and he was taken to government hospital Nagina, but from there he was referred to Bijnor. On the next day, he was referred to Meerut Medical College and was admitted there. On 12.04.2001, Ramesh succumbed to the injuries sustained by him.

14. Perusal of record shows that trial court has based conviction of appellants on evidence of PW-1 Santa Singh and PW-2 Balkar Singh. PW-1 Santa Singh in his statement stated that boundary of their land is adjoining with the land of accused persons and that about 20 days prior to the incident an altercation had taken place over that issue thereafter on the day of incident at about 6:00 PM, when his brother Ramesh was returning from land and reached near culvert, accused Bittu having rod, accused Kala Singh having barchi, accused Balwant Singh having sword confronted the deceased Ramesh and that accused Mahendro Bai who was also standing nearby, exhorted them to kill deceased Ramesh and thereafter deceased was attacked by Balwant Singh with sword and by Bittu with iron rod with intention to kill him. Accused Kala Singh was also exhorting to kill the deceased. Hearing noise, one Balkar Singh, Ranga Singh and several other persons reached there and thereafter accused persons went away. He also stated that his brother Ramesh and eye-witnesses have told him about the incident. The deceased was taken to Nageena Hospital, Bijnor and from there he was referred to Meerut. PW-1 further stated that on 12.04.2001, his father informed him on phone about the death of Ramesh and thereafter he has filed written tahreer Ex. Ka.1 at the police station. In his cross-examination PW-1 has stated that his house is situated at about 750 meters from the spot of incident and that Ramesh and witnesses have told him at his home about the incident and have also told him as to how the incident had taken place. He has further stated in cross-examination that between their land and the land of accused persons, there is land of one Mukundi, Phool Singh and Hakam Singh etc and each plot is of about 2 acres. As there were land of other persons between the land of the parties thus, the boundary on their land and of the accused persons was not common.

PW-2 Balkar Singh stated that on the day of incident at around 6:00 PM while he was present at the house of his uncle Kaka Singh, he heard noise and reached at the spot and saw that Balwant Singh having sword and Bittu having iron rod (saria) were assaulting Ramesh, while Kala Singh having barchi was exhorting to kill the deceased. Similarly, accused Mahendro Bai was also exhorting to kill the deceased. When accused persons were challenged by them, they went away. In his cross-examination, PW-2 has stated that he cannot tell the number of assailants and stated that when he reached at the spot the deceased was bleeding from stomach and again stated that when he reached at the spot deceased Ramesh was lying dead. In further cross-examination, he stated that when he reached at the spot deceased Ramesh was crying of injuries and he has told that he was assaulted by Kala Singh, Bittu and Balwant Singh.

18. So far as the presence of PW-1 Santa Singh and PW-2 Balkar Singh at the spot of the incident is concerned, PW-1 Santa Singh though, in his examination-in-chief, inter alia, stated that his brother deceased was murdered by the accused persons as the deceased was attacked by accused-appellant Balwant Singh with sword, Bittu Singh with a rod and by Kala Singh with barchi, while Smt. Mahendro Bai had made exhortation to kill the deceased, however, in cross-examination, PW-1 Santa Singh stated that his house is situated at a distance of 750 meters from the place of incident. Deceased Ramesh and witnesses have told him about the incident at his home and also told as to how incident has taken place. From this statement of PW-1, it becomes doubtful whether PW-1 has actually seen the incident. Examining the statement of PW-1 as a whole and particularly his cross-examination, it cannot be held with certainty that PW-1 has actually witnessed the alleged incident.