Harbans Lal, J. - (1.) THIS judgment will dispose of R.F.As. Nos. 13 and 39 of 1967, as the Appellants are the same in both the appeals and the claims of the Plaintiffs -Respondents in both the suits out of which the present appeals have arisen, arise out of the same set of circumstances.
(2.) TWO brothers, Avtar Singh and Hardip Singh, met their tragic end at the hands of the Appellants as a result of the infliction of several injuries on their persons for which the Appellants were prosecuted and after trial, were convicted and sentenced to imprisonment for life, under Section 302, Indian Penal Code One suit was filed by Major Singh and others, the heirs of Avtar Singh, deceased, being the son, daughters and his widow, claiming Rs. 30,000/ - as compensation on account of murder of Avtar Singh. The claimants in their averments in the suit claimed to be entirely dependent on the deceased and alleged his income annually as cultivator to be Rs. 3,000/ -. The suit was contested by the Appellants and it was contended inter -alia that they had been falsely implicated due to enemity. The other suit was filed by Mrs. Jeo, as mother of Avtar Singh and Hardip Singh, deceased, claiming Rs. 12,000/ - as compensation on account of the death of her two sons, against the Appellants. This suit was also contested. Both the suits were filed in forma pauperis. The requisite permission to sue as paupers was granted by the trial Court and the suits were tried on merits. Two issues relating to the murder of Avtar Singh in one suit and the murder of Avtar Singh and Hardip Singh in the other suit as well as regarding the amount of compensation were framed. All the issues were decided in favour of the Plaintiff -Respondent. It was held that Avtar Singh had met his tragic end at the hands of the Appellants, that the annual income of Avtar Singh was Rs. 3,000/ - and that the Plaintiffs being dependents on the deceased were entitled to the damages amounting to Rs. 30,000/ -. The suit was consequently decreed for Rs. 30,000/ - and each of the four Plaintiff -Respondents was held entitled to equal share in the decretal amount. The judgment and decree has been challenged in this appeal. Another suit had been filed by the mother of the deceased which was also decreed. Against these two judgments and decrees, two appeals, R.F. As. Nos. 13 and 39 of 1967, were filed. Both these appeals were heard by O. Chinnappa Reddy, J. (as he then was) on May 3, 1977. In order to prove the first issue regarding the murder of Avtar Singh, none of the eye witnesses had been produced in evidence. Only their depositions at the trial of the criminal case in the Court of the Sessions Judge were tendered in evidence with the consent of the parties. The finding regarding the commission of the murder was returned by the trial Court on the basis of this evidence. In the appeal, one of the objections raised was that the evidence recorded in the criminal case could not be treated as evidence under any provision of law in the suit for damages. The learned Judge upheld this contention vide his order dated May 3, 1977. However, in the interest of justice, it was ordered under Order XLI Rule 28 read with Order XLI Rule 27(1)(b) Code of Civil Procedure that the statements of the two eye witnesses, Balkar Singh and Mohinder Singh be recorded in the Court of the trial Subordinate Judge. It was also ordered that if for any reason any of the witnesses was not available, the parties may lead evidence to make out a case for admission of their previous statements under Section 33 of the Evidence Act.
(3.) IN pursuance of this order, the Plaintiff -Respondents produced Mohinder Singh as a witness in the Court of the trial Subordinate Judge. According to his statement recorded on January 4, 1978, about 16 years ago at about 9.30 a.m. he along with Avtar Singh, his brother Hardip Singh and Mohinder Singh, was going to the fields from his village. Avtar Singh deceased, was going ahead with his bullocks and was carrying a small danda (stick) in his hand. The other three were following him. The witness and Hardip Singh, deceased, were carrying sickles in their hands. As soon as they reached near the field of Amar Singh, Amar Singh and Dilbagh Singh, Defendant -Appellants, armed with kirpans Kulwant Singh and Gurdial Singh, Defendant -Appellants, armed with takwas came from the opposite direction. On seeing the deceased, Amar Singh, raised a lalkara shouting at the deceased. The witness and the deceased, then tried to run back for safety. Dilbagh Singh and Gurdial Singh, Appellants chased Avtar Singh, deceased, whereas Hardip Singh, deceased, was pursued by Amar Singh and Kulwant Singh, Appellants, Dilbagh Singh, Appellant, inflicted a kirpan blow on the head of Avtar Singh as a consequence of which he fell down on the ground. Thereafter, Gurdial Singh and Dilbagh Singh Appellants, also inflicted injuries with their respective weapons. Hardip Singh, deceased, was inflicted injuries by Amar Singh and Kulwant Singh, Appellants, who also fell on the ground. After causing these injuries, all the four assailants escaped with their respective weapons. When the witness and his companions reached the two injured persons, they were found dead. The witness was made to sit near the dead bodies and Balbir Singh, went to the village to inform the lambardar about the occurrence. Subsequently, the police reached the spot where the statement of the witness was recorded. According to the witness, both Hardip Singh and Avtar Singh were brothers and enjoyed good health at the time of their murder and used to cultivate agricultural land. Avtar Singh was of 30 years of age at the time of his murder. In cross -examination, no question was put to him on behalf of the Defendant -Appellants regarding the commission of murder by them. Some questions were directed regarding the cultivation of the land of Pala Singh by the deceased. Regarding the other eye witness, Balkar Singh, statement was made by Shri K.K. Sharma, Advocate, counsel for the Plaintiff -Respondents, that he had gone to the State of West Bengal and his whereabouts were not known as he had not left any address. Besides the statement of Mohinder Singh, eye witness, copy of the judgment, Exhibit P. 3, whereby the Defendant -Appellants were held guilty of committing the murder of Avtar Singh and his brother Hardip Singh and were thus convicted and sentenced under Section 302, Indian Penal Code, had been already produced in evidence on behalf of the Plaintiff -Respondents. No evidence was produced by the Defendant -Appellants in rebuttal relating to this issue. Nothing has been brought on the record to discredit the eye witness account by Mohinder Singh which is quite convincing and consistent. The circumstances leading to the murder of Avtar Singh and Hardip Singh, as stated by him, were not even questioned in any manner in cross examination. Besides, the judgment in the criminal case, Exhibit P. 3, whereby all the Defendant -Appellants were held to be guilty of the murder is also relevant and has probative value. Consequently, it is held that all the four Defendant -Appellants committed the murder of Avtar Singh on March 21, 1961 and the issue is decided against them.;