K.K.SRIVASTAVA, J. - (1.) THIS is an appeal by the State of Punjab against the Judgment and order dated 29th April, 1986, passed by Shri A.D. Singh Wasu, Additional Sessions Judge, Amritsar, convicting the respondent-Balwant Singh under Section 304 Part-II I.P.C, instead of Section 302 I.P.C. and instead of sentencing him at once to suffer imprisonment thereunder, he was extended benefit of Section 4(1) of Probation of Offenders Act, 1958 and ordered to be enlarged on probation for a period of three years subject to the conditions mentioned in the order as to the sureties to be filed on the grounds mentioned therein, and further keeping him under supervision within the provisions of Section 4 sub-section (3) of the said Act.
(2.) THE facts giving rise to this appeal, stated briefly, are that the offence took place on 7.2.1985 at about 7.30 p.m. in village Sirhali Mandan within Police Station Sirhali. In this occurrence, one Mohinder Singh was murdered. At the time of the occurrence, the deceased Mohinder Singh and his brother Bhira Singh and one Chanchal Singh, P.W. were standing under a behar tree in their own mohalla and talking to each other. The accused Balwant Singh and co-accused Amrik Singh, who has since been acquitted by the learned Additional Sessions Judge, arrived at the scene of the occurrence, from the side of a pucca road raising cat calls. The deceased is stated to have objected to this behaviour of the accused who also did not relish it and took ill of it. It is alleged that Amrik Singh grappled with Mohinder Singh, deceased, and Balwant Singh, the accused, who has been convicted by the learned Additional Sessions Judge, gave a kirpan blow to the deceased Mohinder Singh. The blow landed on the left upper arm of Mohinder Singh. It is alleged that kirpan blow was given with a heavy force. A hue and cry was raised by Bhira Singh and Chanchal Singh, both P.Ws. Both the accused persons are said to have made their escape good from the place of occurrence. The deceased Mohinder Singh, who had suffered injury was taken to the civil hospital at Kairon and was accompanied by P.Ws. Bhira Singh and Chanchal Singh. Mohinder Singh succumbed to his injuries immediately after reaching the hospital. The Police recorded the statement of P.W. Bhira Singh, exhibit PH. A.S.I. Balwant Singh, P.W. 8, conducted the inquest proceedings and sent his endorsement exhibit PH/1 to the police station for registration of the case. F.I.R., exhibit PG was recorded by A.S.I. Chaman Lal. A.S.I. Baldev Singh entrusted the dead body of Mohinder Singh to constables Satwant Singh and Sarbjit Singh for post mortem examination with relevant papers. The aforesaid constables took the dead body of Mohinder Singh, deceased, along with relevant papers and samples and these were produced before Dr. Virinder Singh, P.W. 2 working as Medical Officer at civil hospital Tarn Taran, on 8.2.1985 at about 9.30 a.m. The dead body was duly identified by the aforesaid constables and the autopsy surgeon found the following injuries : 1. An incised wound 13 cm x 4 cm bone deep on the middle of left upper arm placed obliquely, 13 cm from the left acromion angle running downwards and medially upto 5 cm above the medial epicondyle. The skin, subcutaneous tissues, muscles, and blood vessels, nerves cut. Underlying bone was also cut partly. Brachial artery and vein were cut through and through. 2. An abrasion 3 cm x 2 cm on the front of left patella. Injury No. 1 was caused by sharp edged weapon and injury No. 2 by a blunt weapon. The statement of Dr. Virinder Singh, P.W. 2 shows that the death was caused due to shock and haemorrhage as a result of injury No. 1, which was ante mortem and sufficient in the ordinary course of nature to cause death and the death of the deceased Mohinder Singh occurred within 2 to 3 hours of the injuries ante mortem sustained. Carbon copy of the post mortem report was proved as exhibit PD by the aforesaid autopsy surgeon, who also prepared pictorial diagram, exhibit PD/1 showing the seats of injuries. He also removed clothes from the dead body and sealed them in a packet which was sent to the police. The Investigating Officer of this case commenced the usual investigation during which he recorded the statements of the witnesses and prepared a site plan. Surjit Singh, Lambardar, produced both the accused- respondents before A.S.I. Baldev Singh, P.W. 8, who arrested them and produced them before the Duty Magistrate on 10.2.1985. The respondent-Balwant Singh made a disclosure statement to the effect that be had kept the weapon of assault i.e. kirpan underground in a room of his residential house which he could produce before the said A.S.I. and it was on the pointing out of the said accused that kirpan, exhibit P-6 was recovered, the blade of which was stained with blood. The sketch of the blade was drawn and the same was sealed in a parcel and taken into possession vide seizure memo, exhibit PM, which was attested by the witnesses of the recovery. He also prepared a site plan of the place of recovery, exhibit PT. After completion of the investigation, the challan was filed against both the accused-respondents and they were produced before the Ilaqa Magistrate, who committed the case to the Court of Sessions, where they were tried and a charge under Section 302 I.P.C. read with Section 34 I.P.C. was framed against both the accused-respondents. The charge was read over to the accused-respondents, who pleaded not guilty to the charge and claimed to be tried.
(3.) THE prosecution at the trial examined Dr. Rajinder Singh, P.W. 1; Dr. Virinder Singh, P.W. 2; A.S.I. Chaman Lal, P.W. 3; Bhira Singh, P.W. 4; Chanchal Singh, P.W. 5; Amrik Singh, P.W. 6; Rishi Ram, Draftsman, P.W. 7; and A.S.I. Baldev Singh, P.W. 8, who prepared site plan of the place of occurrence.;