A.S.NEHRA,J - (1.) THIS appeal is directed against the judgment dated 28.8.1993 passed by the Additional Sessions Judge, Panipat, by which the appellants were convicted and sentenced as under :- Each of the appellants, namely, Om Parkash, Ramesh and Satbir. u/s 302/34 IPC. To undergo imprisonment for life and to pay a fine of Rs. 500/- and, in default of payment of fine, to undergo further rigorous imprisonment for six months. Each of the appellants, namely, Satbir and Ramesh u/s 25/27, Arms Act To undergo rigorous imprisonment for two years. Om Parkash appellant u/s 27, Arms Act To undergo rigorous imprisonment for two years.
(2.) ALL the substantive sentences of imprisonment of each of the appellants were directed to run concurrently. However, Smt. Mamo and Suresh, co-accused of the appellants, were given the benefit of doubt and acquitted of the charges by the Additional Sessions Judge, Panipat. Briefly stated, the prosecution story is as under :- Dhulla (since deceased) was the resident of village Nara. He had three sons, namely, Om Parkash accused, Dharam Pal (since deceased) and PW-17 Inder, Satbir, Ramesh and Suresh, accused, are the sons of Om Parkash accused while Smt. Mamo is the wife of Om Parkash accused. Dhulla was owner of 16-17 Killas of land situated in village Nara. About 5-6 years prior to the present occurrence, he had transferred one Killa of land to each of his three sons. About 8-9 months prior to the occurrence, Dhulla had transferred three Killas of land each to Inder and Dharam Pal by Court decree dated 20.5.1989 (copy Exhibit PE) passed in Civil Suit No. 324 of 1989 titled as Inder and others v. Dhulla but he did not give any land to his elder son Om Parkash accused. On account of it, the relations between Om Parkash accused and his father Dhulla became strained. Om Parkash filed a civil suit on 19.10.1989 for declaration and for setting aside the judgment and decree dated 20.5.1989, as is clear from the copy of the plaint (Exhibit PO). Inder and Dharam Pal, sons of Dhulla and Dhulla son of Masania, were the defendants in that case, Om Parkash alias Parkash son of Dhulla had also filed application whose photo Copy is Exhibit PO dated 16.10.1989, against his father Dhulla in the Court of Assistant Collector, 2nd Grade, Panipat, for correction of Khasra Girdawari for the period Kharif 1983 till the filing of the application, of land measuring 19 kanals 13 marlas situate in village Nara. Dhulla son of Masania had also filed a suit against his son Om Parkash accused and three sons of Om Parkash accused for permanent injunction for restraining them from interfering with his possession over the land as is clear from the copy of order dated 15.6.1990 (Exhibit PH). That suit was instituted on 5.6.1990. Dharam Pal (since deceased), father of Jasmer Singh PW-16 had been living with his family in the fields about 8-10 years prior to the occurrence, at a distance of 2-3 Killas from the place of first occurrence. However, Dhulla lived with his son Inder. Maha Singh PW-18 is the son of Beer Singh who was brother of Dhulla. On the day of occurrence, Dhulla was sitting in the ghair (court-yard) of Raghbir, brother of PW-18 Maha Singh. Raghbir Singh had also got constructed a baithak in that ghair. On 29.8.1990 at about 11-00/11-30 a.m., Dharam Pal was returning to his house, situated in the fields, on cycle from the bus stand of village Matlauda. Earlier at 9-00 a.m. he had left his house on cycle for going to Matlauda Mandi. PW-16 Jasmer Singh and PW-18 Maha Singh were returning from the field of Dharam Pal. When Dharam Pal reached near the chari field of Om Parkash accused, then Mamo accused told the other accused in a louder voice that Dharam Pal was coming. Upon it, Om Parkash, Suresh, Ramesh and Satbir, accused, emerged from chari field and caught hold of the handle of cycle of Dharam Pal. At that time, Satbir accused was armed with double barrel gun, Om Parkash accused was having a bag containing cartridges; Ramesh accused was armed with gandasa while Suresh accused was armed with a jaili. However. Smt. Mamo, accused was empty-handed. Om Parkash accused told Dharam Pal that he would be taught a lesson for helping Dhulla. Thereupon, Ramesh accused exhorted his brother Satbir accused to fire upon Dharam Pal. Consequently, Satbir accused fired three shots at Dharam Pal. One shot hit Dharam Pal on his right flank and the other two shots hit him on the back. Upon receipt of firearm injuries, Dharam Pal fell down and died at the spot. Out of fear, PW-16 Jasmer Singh (son of Dharam Pal) and PW-18 Maha Singh (son of Beer Singh) concealed themselves in the chari field and witnessed the occurrence from a distance of 5'-6'. Upon coming to know that Dharam Pal had died, his son Jasmer Singh PW-16 went to his house to inform the other members of the family and returned to the spot after 10-15 minutes. Dhulla alongwith his son Inder PW-17 was sitting on a cot in the ghair of the house of his brother's son Raghbir. The said ghair of Raghbir is at a distance of 7-8 Killas from the place of first occurrence. Maha Singh PW-18 came running in the ghair and told Inder Singh by taking him to one side that Dharam Pal had been murdered as Satbir accused had shot him dead and that, with him, there were four other accused, namely, Om Parkash, Suresh, Ramesh and Smt. Mamo. In the meantime, all the accused reached there. Ramesh accused was armed with a double barrel gun; Satbir accused was armed with gandasa; Suresh accused was armed with jaili and Om Parkash accused was having a bag containing cartridges and Smt. Mamo accused was empty-handed. Smt. Mamo accused exhorted Ramesh accused to fire at Dhulla. Upon it, Ramesh accused fired two shots aiming at Dhulla, which hit him, first, above the right thigh near the abdomen and second, on the left wrist. At that time, Dhulla was sitting on a cot. On receipt of gunshot, he fell down on the ground. Out of fear, PW-17 Inder and PW-18 Maha Singh ran away from the ghair after jumping over the wall. PW-19 Raj Singh Sub Inspector was present at the bus stand of Matlauda on 29.8.1990 at about 12-30 p.m. PW-18 Maha Singh met him there and made statement Exhibit PG/1 which was read over to him after writing and he had thumb-marked it after admitting the same to be correct. PW-19 Raj Singh Sub Inspector made endorsement Exhibit PG/2 upon it and, on the basis of that statement formal FIR Exhibit PG was recorded by Sub Inspector Himat Singh whose signatures he identified.
(3.) THEREAFTER , PW-19 Raj Singh Sub Inspector alongwith PW-18 Maha Singh and PW-3 Mehar Singh Photographer reached the spot in village Nara where the dead body of Dharam Pal was lying. PW-3 Mehar Singh took photographs (Exhibits PC/1 to 9) of both the places of occurrence, whose negatives are Exhibit PC/10 to 18. Ajmer Singh PW was also with the police party at that time. PW-19 Raj Singh Sub Inspector inspected the spot and prepared inquest report Exhibit PD/2 regarding the dead body of Dharam Pal. Sube Singh son of Ram Dia also came there and he was joined in the investigation of the case. PW19 Raj Singh took blood-stained earth from the spot, which was made into a sealed parcel and the seal, after use, was handed over to Sube Singh and the sealed parcel was taken into possession, vide recovery memo Exhibit PV. Two cartridges (one empty and the other missed), Exhibits P-15 and P-16, were taken into possession from the spot by making into a sealed parcel, vide recovery memo Exhibit PU. One empty bag Exhibit P-13 (Katta) and one bushirt Exhibit P-14 were made into a sealed parcel which were taken into possession, along with the cycle Exhibit P-12 and Pulli, vide memo Exhibit PT attested by the witnesses. PW-19 prepared rough site-plan Ex.PAA. Meanwhile, PW-21 Hardeep Singh, Assistant Sub Inspector, along with other police officials joined him and he (PW-21) was deputed to prepare inquest report of Dhulla deceased at the baithak of Raghbir Singh. Mehar Singh Photographer and Maha Singh complainant were also sent with him. The dead body of Dharam Pal was lifted, put in a tractor-trolley and taken to the spot where the second murder had taken place. PW-19 Raj Singh Sub Inspector correctly recorded the statements of Jasmer Singh and Sube Singh, witnesses. PW-21 Hardeep Singh, Assistant Sub Inspector, along with Maha Singh and PW-3 Mehar Singh Photographer went to the spot and found Inder Singh PW sitting near the dead body of Dhulla. He inspected the spot and the place of occurrence was photographed. At 4-00/500 p.m., he prepared inquest report Exhibit PR/6 with respect to the dead body of Dhulla. PW-12 Raj Singh Sub Inspector along with other police officials, also reached there. PW-21 Hardeep Singh, Assistant Sub Inspector, handed over the inquest report and other papers regarding the dead body of Dhulla to him. PW-19 Raj Singh Sub Inspector lifted blood-stained earth from the second place of occurrence and made it into a sealed parcel Exhibit P-20 which was taken into possession, vide memo Exhibit PBB attested by the witnesses. The seal, after use, was handed over to Sube Singh. Five cartridges, i.e., two empty cartridges (Exhibits P-21 and P-22), one missed cartridge and the other two live cartridges, were lifted from the spot and were taken into possession after making them into a sealed parcel, vide memo Exhibit PCC. The ropes (Exhibit P-23) of the cot, which were blood-stained, were cut from the cot, made into a sealed parcel and taken into possession, vide memo Exhibit PDD, along with the cot (Exhibit P-24). Sube Singh and Ram Sarup, witnesses, attested all the memos. PW-19 recorded their statements under section 161 of the Code of Criminal Procedure. He prepared rough-site plan (Exhibit REE) of the place where the dead body of Dhulla was lying. A pair of shoes, which were lying near the dead body, were sent along with the dead body. The dead body of Dhulla was also put in the same tractor-trolly in which the dead body of Dharam Pal was lying and both the dead bodies were sent to Civil Hospital, Panipat, for post-mortem examination.;