- (1.) This is an appeal by special leave by Karnail Singh and Malkiat Singh against the judgment of the High Court of Punjab confirming their conviction by the Additional Sessions Judge, of Ferozepore under section 302, I.P.C. and the sentence of death passed on them.
(2.) The facts as found by the courts below are as follows: There had been longstanding enmity between the appellants and their party on the one hand and the deceased Gurbaksh Singh and his party on the other, resulting in a number of crimes, and proceedings in court. On the 27th of January 1952, at about sunset time, Gurbaksh Singh was sitting inside his house on the sabath and his sister Mst. Bholan was in the kitchen. Then the appellants and their men came to the place armed with rifles, got on the roof of the house of Gurbaksh Singh and challenged him to come out. Gurubaksh Singh and Mst. Bholan went into the kotha and bolted the door from inside. Then the appellants and their men made holes in the roof with spades, ignited inflammable materials, such as dry twigs, and threw them inside the kotha through the holes and set fire to the buildings. Both Gurbaksh Singh and Mst. Bholan were caught inside and burnt to death. A brother of Gurbaksh Singh, called Dev, who had been at that time away, was, according to the prosecution, seized when he subsequently turned up, thrown into the flames and was also burnt to death. Meantime one Gurnam Singh, P. W. 13, a cousin of Gurbaksh Singh and his neighbour, managed to slip out of the village and reported the occurrence at the police station at Nihal Singhwala, a place eight miles away (Vide Ex. PQ). It was then 10-30 P.M. On receipt of this information, the police sub-inspector, P. W. 25, went to the village with a posse of constables and with Gurnam Singh. He found the house mostly burnt and recovered therefrom the charred remains of three dead bodies and they were identified as those of Gurbaksh, Dev and Mst. Bholan. The appellant Karnail Singh was actually seen at that place and arrested on the spot. Malkiat Singh who had been mentioned in Ex. PQ as one of the participants was found in his house with gunshot wounds and was also arrested. Eventually eight persons, including the appellants were charged under S. 148, I.P.C. for forming an unlawful assembly with the object of burning the house of Gurbaksh Singh and murdering him, Dev and Mst. Bholan, and under S. 302 read with S. 149 for their murder. The Additional Sessions Judge. Ferozepore, held that the case had not been established beyond doubt as against two of the accused and he accordingly acquitted them. He convicted the six others including the appellants under S. 302 read with S. 149 and sentended them to death. On appeal, the learned Judges of the Punjab High Court held that "although there can be no doubt whatever that the occurrence took place more or less on the lines described by the prosecution witnesses, and the primary object of the culprits must have been to murder Gurbaksh Singh, deceased, in consequence of the bitter enmity between him and the main body of the accused" and that "although it may very well be true that all the six appellants took part in this occurrence", the evidence against the four accused other than the appellants was insufficient to sustain their conviction, as it consisted of the testimony of persons who were at a distance of 40 to 50 ft. from the scene of occurrence and who claimed to identify the particular accused only by their voice. They were accordingly acquitted. Then dealing with the case against the two appellants they observed that as against them, there was evidence of the two eye-witnesses, Gurnam Singh (P. W. 13) and Maghar Singh (P. W. 14), that Maghar Singh was not a reliable witness, that nothing could be urged against the evidence of Gurnam Singh, that even so it would be unsafe to base a conviction on his evidence alone, but that the presence of Karnail Singh at the spot and the existence of wounds on the person of Malkiat Singh afforded sufficient corroboration of the evidence of Gurnam Singh. They accordingly confirmed the conviction and sentence as against the appellants. As four of the accused were acquitted in appeal, the learned Judges set aside the conviction of the appellants under S. 149 and substituted S. 34, I. P.C. therefor.
(3.) Two contentions have been urged on behalf of the appellants, that the evidence which had been accepted by the learned Judges as reliable was insufficient to establish the guilt of the appellants and that their conviction under S. 34 was bad as no charge had been framed against them under that section. On the first point, the argument of the learned counsel for the appellants was that having held that the only eyewitness whose evidence was worthy of credence was P. W. 13, and that even his evidence could not be acted upon unless it was corroborated, the learned Judges were in error in holding that there was such corroboration against the appellants. The circumstance relied on by the court below as corroborating the evidence of P. W. 13 was that the appellants were proved to have been present at the scene of occurrence and there was no satisfactory explanation from them therefor. A regards Karnail Singh, the police Sub-Inspector, P. W. 25, actually found him emerging out of the burning house with a spear in his hand. He had injuries on his person and his pyjama was bloodstained. He was arrested on the spot and the spear and the pyjama were seized and marked as Exts. P-12 and P- 20. As the Malkiat Singh, his name was mentioned in the first information report, Ex. PQ and P. W. 25 went to his house and found him with gunshot woulds and arrested him. In the statement given by Kamail Singh under S. 342, Cr. P. C., he stated that when he saw the house of Gurnam Singh on fire, he went there and was assaulted by culprits, that Malkiat Singh came there to help him, that when they were grappling with the culprits he was attacked and Malkiat Singh received a gunshot and thereafter they went away to their houses. The statement of Malkiat Singh also was on similar lines. There was no evidence that any other person or persons were responsible for the acts and the learned Judges therefore rejected as untrue the explanation of the appellants that "they received these injuries while intervening against some unknown assailants on behalf of their bitterest enemy.";