S. Ratnavel Pandian, J. - (1.) The above appeals by special leave under Art. 136 of the Constitution of India are directed against the correctness and legality of the judgment dated 4th May, 1979 of the High Court of Delhi in Criminal AppealNo.323/76.
(2.) These two appellants were accused Nos.2 and 1 respectively before the 8th Additional Sessions Judge and they took their trial in Sessions Case No. 38/75 on the charge that on 28-5-1975 at about 3.30 a.m. in Pitam Pura within the jurisdiction of Punjabi Bagh Police Station both appellants in furtherance of their common intention committed murder of Hanumant Singh, the deceased herein and thereby committed an offence punishable under S. 302 read with 34 IPC. The facts of the case briefly stated are as follows: The deceased Hanumant Singh was the son of Harkishan Singh (PW-6). At the time of the marriage of the deceased with Smt. Santosh (PW-4), PW-6 presented about 30 tolas of gold ornaments worth about Rs. 10,000/ - to PW-4. PW-4 on her first visit to the house of PW-6 brought all the ornaments and stayed there for 6 months. Then she went to her parents house wearing all those ornaments but left them with her father Dhani Ram and brother Mohinder Singh and all the ornaments were never returned by her father and brother. The deceased persistently asked his wife PW-4 to bring back the ornaments telling her that her father and brother had intended to grab the same. Though PW-4 went to her parents house many times to fetch the ornaments she was not successful. On 25-5-75 the deceased rebuked PW-4 and asked her to bring the ornaments from her parents, but PW-4 expressed her helplessness. So under the pressure of her husband, PW-4 went to her parents house on 25-5-75 at about 3.00 p. m. to get back the ornaments. As PW-4 had gone to her parents house, the deceased brought Km. Sunita (PW-11), the daughter of his brother Kartar Singh (PW-5) for household job and PW-11 stayed in the house of the deceased. On 27-5-75 at about 8.00 p.m. the appellant Mohinder Singh who is none other than the brother of PW-4 came to the house of deceased along with his friend appellant Mahesh Chander. The deceased and these two appellants took their bed in the outer court-yard. PW- 11 was sleeping in the verandah adjoining the outer court-yard.
(3.) At about 3.15 a.m. on the intervening night of 27/ 28-5-75 PW- 11 was woke-up and found the appellant Mahesh Chander sitting over the deceased and securing him firmly. While so, appellant Mohinder Singh gave a blow with a wooden pestle (Moosal) on the head of the deceased resulting in bleeding injuries. The deceased shouted "MAR DIYA, MAR DIYA, BACHAO BACHAO" (Being killed, being killed, save me, save me). PW-11 questioned both the appellants as to what they were doing to which the appellants threatened PW-11 saying that she would also be killed if she uttered any word. So PW-11 became panicky and kept silent. Then appellant Mahesh Chander dragged the deceased inside the house while appellant Mohinder Singh kept on hitting the deceased with that pestle. At this point of time PW- 11 escaped from the scene house and went to the house of her father (PW-5) to inform him. On the way PW-11 met PW-3 at some distance but despite enquiry by PW-3, PW- 11 could not give any reply and she was dumb-stricken. PW-1, a neighbour of the deceased who had earlier seen the deceased and both the appellants lying on different cots in the front courtyard of the house of the deceased and who was sleeping on the terrace of his house heard the voice of the deceased "MAR DIYA, BACHAO BACHAO" by about 3.30 a.m. From the upstairs of his terrace he saw the appellant Mahesh dragging the deceased inside the house and appellant Mohinder Singh beating the deceased with the wooden pestle (Ex.P. 1). By that time, PW-3 came by the side of the house of the deceased. Both PWs 1 and 3 shouted at the appellants to which both the appellants threatened the witnesses if they tried to intervene. Then PW-1 and PW-3 stepped back. PW-1 ran to the house of PW-6 to inform him. In the meanwhile PW-5 on being informed by PW-11 came to the scene house along with PWs 1, 3 and 6. When they were at a distance of 8 to 10 paces, they saw the appellants running towards Shakurbasti. Thereafter all the four, namely, PWs 1, 3, 5 and 6 entered the house and found the deceased dead. PWs 1 and 6 went to the police station of Shakurbasty where PW-1 gave the report Ex. PW 1/B before PW-17, the Sub-Inspector of Police of Punjabi Bagh who was at the relevant time in charge of Shakurbasti Police Station also.PW- 17 after making his endorsement Ex. PW 17/ A, to the report, despatched the same for registration of a case to the concerned Punjabi Bagh Police Station where the F. I. R. Ex. PW 7/ A was registered by PW-7 (Head Constable). PW-17 accompanied by PWs 1 and 6, went to the scene place and recorded the statements of PWs 3, 5, 6 and 11. He summoned the crime team and got the place of occurrence photographed. He seized the blood-stained earth from 5 different spots under the recovery memo Ex. PW 2/ B-13. He also recovered some human hair Ex. P8 from the front Court yard and the blood-stained wooden moosal- Ex. PI from near the dead body. He prepared a rough site plan and held inquest over the dead body of the deceased. He sent the dead body for post-mortem examination. PW-2, the police Surgeon performed necropsy on the dead body of the deceased and noted as many as 9 injuries, of which injuries Nos. 1 to 3 were lacerated wounds, injuries Nos. 5, 7 and 9 were fractures and injury No. 6 was a contusion. Injury No. 4 was a bruise over the tip of right shoulder. The bones at various places were broken. On 29-5-75 PW-17 arrested both the appellants. An identification parade was arranged but the appellant Mahesh refused to participate in the parade. After completing the investigation PW-17 laid the chargesheet. The prosecution examined PWs 1, 3 and 11 as eye-witnesses to the occurrence. PWs 5 and 6 were examined to speak about the appellants running away from the scene after the commission of the crime. The other witnesses were formal witnesses and PW-17 was the investigating officer.;