S. Murtaza Fazal Ali, J.
1. This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court dated 10.9.1974 by which the appellant Balraj Singh @ Chhajju has been acquitted of the charges framed against him.
2. The facts of the case have been succinctly stated in the judgment of the High Court as also that of the learned Session Judge. It appears that tow accused Balraj Singh alias Chhajju Ram and Balkar Singh alias Khola prosecuted before the Sessions Judge who acquitted Balkar Singh alias Khola but convicted the respondent Balraj Singh alias Chhajiu under Section 302 and sentenced him to death and also convicted him under Section 307 IPC and Section 25 of the Arms Act. The respondent filed an appeal to the High Court and a reference was made by the Sessions Judge for confirmation of his death sentence. The High Court after cartful consideration of the evidence held that the case against the appellant was not proved beyond reasonable doubt and accordingly acquitted the appellant of all the charges framed against him. Hence this appeal before us.
3. It is alleged that on 14th April, 1973 deceased Swaran Singh accompanied by his brother Surat Singh PW 3 and son Harjit Singh PW 4 was passing though the wheat-field in village Batti when he was accosted by the accused, who challenged Swaran Singh deceased to get ready for being taught a lesson for his acting as an informer against him by supplying information to the police regarding the theft of a tractor belonging to Kntpal Singh. The witnesses P.W 3 and P.W. 4 were following the deceased. The respondent is said to have tiled a shot at the deceased which injured in his chest and abdomen and resulted in his death. P.W. 3 and P.W. 4 on seeing the incident turned their back and ran away raising an alarm. The respondent then fired his pistol at them and injured both of them, F.I.R. was lodged at about 11.55 p.m. and, after usual investigation, charge-sheet was submitted against the respondent and he was committed for trial before the Sessions Judge who ultimately convicted and sentenced him as indicated above.
4. We have heared learned Counsel for the parties and have gone through the judgment of the High Court and of the Sessions Judge and perused the evidence on the record. This being an appeal against acquittal, it is wall settled that this Court would ordinarily interfere only when there are special reasons or a substantial error has been committed by the High Court in acquitting the accede. It appears that the conviction of the appellant rest mainly on the evidence of P.W. 3 Surat Singh and Harjit Singh P.W. 4 P.W. 4 Harjit Singh a boy of tender years had in fact committed some 'confusion' in identifying the accused before the committing court. Later on when he was again asked to identify the respondent Bilraj Singh, he did so. Nevertheless even the trial court had cone to a clear finding that there had been some confusion in the mind of the child regarding the identification of the despoil dent and it was not prepared to place implicit reliance on his testimony as it observed that even if evidence of P.W. 4 was excluded the statement of P.W. 3 was sufficient to sustain the conviction of the respondent.
5. The High Court thought is rather unsafe to base the conviction o the respondent on the uncorroborated testimony of P.W. 3 Surat Singh. The High Court has also given reasons for not relying on the testimony of P.W. 3. We may not approve of some of the reasons given by the High Court, and perhaps if we were sitting in appeal we may have taken a different view of the matter, but that is. no ground for reversing an order of acquittal. The High Court thought that it was difficult to believe that the respondent would have raised any 'lalkara' so as to facilitate his identification. This finding is based purely on speculation and we find no inherent improbability in the circumtance. We have come across many cases where we found that in Punjab a 'lalkara' preceded an assault. Secondly the High Court held that the pellet injuries on P. Ws. 3 and 4 appear to be fabricated. Having regard, however, to the nature of the pellet injuries received by P. Ws. 3 and 4 it is not possible for us to hold that the injuries could be fabricated. When a suggestion was made to the doctor that the injuries could have been caused by a 'Sua' it was emphatically dented by Dr. Khera P.W. 1 on the ground that such fabricated injuries would have been of a larger dimension. In the circumstances we are of the opinion that there was no justification for the High Court to have drawn an inference that the injuries on the person of P. Ws. 3 and 4 were fabricated.
6. Mr. Mukherjee appearing for the respondent has drawn our attention to two circumstance which raise a doubt regarding the identification of the respondent by the witness. In the first place he submits that there is absolutely no evidence to show that the respondent knew that the deceased and the witnesses would be passing through the fields at that particular time of the night so as to enable the accused to lie in wait for them. There is no suggestion at all that it was a part of the daily routine of the deceased or the witnesses to pass through the field at about 8.30 to 9.30 p.m. so that the accused being aware of the some would try to select a particular time for the assault. Secondly it was submitted that having regard to the distance from which P.W. 3 and P.W. 4 identified the respondent and the circumstances in which they did so raises a possibility of doubt. It is the admitted case of the parties that the occurrence had taken place in a what field which was ready for harvesting. It is but natural that standing crop would to some extent obstruct the view of the witness. According to Patwari P.W. 6 he had prepared the site plan after proper measurements and the scale according to him. was 1'=60 karams. On the basis of this measurement it would appear that P.W. 3 and P.W. 4 would be at a distance of about 150 ft. when they saw the respondent. In view of these circumstances, therefore, although it may have been possible for the witnesses to identify the respondent, the possibility of mistake in identification cannot be excluded. We are, therefore, not inclined to interfere with the judgment of the High Court.
7. For the reasons given above we find no merit in this appeal which Is dismissed. The respondent who is in custody is directed to be released forthwith.