Gopal Singh, J. - (1.) THIS is appeal by Nahar Singh from the judgment of Shri Muni Lal Verma, Sessions Judge, Bhatinda, dated January 11, 1967 convicting him under Section 304 (Part I), Indian Penal Code and sentencing him to rigorous imprisonment for five years. Jang Singh was also tried along with Nahar Singh. He was, however, acquitted.
(2.) BRIEFLY stated, the facts of the prosecution case are that a well in the area of village Heron Kalan in the district of Bhatinda was jointly owned by Mukand Singh, Jagir Singh, Maghar Singh, Gurdial Singh and Hardyal Singh deceased brother of Gurdial Singh. The co -sharers used to work the persian wheel of the well by turn. A little more than three weeks prior to the occurrence, Gurdial Singh returned on a cycle from Sunam to the village. He found that the mother of Jung Singh co -accused of the appellant was walking ahead of him. He rang the bell to alert her so as to get aside. In spite of his attempt to save her, his cycle struck against her. She abused him. The following day, Jang Singh convened Panchayat and said that he would deal with Gurdial Singh. About a fortnight prior to the occurrence, which came off on June 8, 1966, Hardial Singh wanted to work the wheel. Nahar Singh appellant siri of Mukand Singh would not allow him to do so. There arose dispute between the two. The matter was referred to the Panchayat. The Panchayat settled the terms to work the wheel. The ill -will in the mind of Nahar Singh and his co -accused Jang Singh is said to have continued in spite of the Panchayat having been convened and the disputes having been settled there. It is further stated on behalf of the prosecution that on June 8, 1966. Hardial Singh was sleeping on a cot in cattle -shed, that Gurdial Singh returned at 10 or 11 p.m. after irrigating the field of Niranjan Singh to his house and met Jaila in the vacant site at a distance of 5 karams from the cattle -shed, that Jaila was loading manure on his cart, that on hearing cries from the side of cattle -shed, he and Jaila came there, that they saw Jang Singh pulling out his spear, which be had hit in the belly of Hardial Singh, that Hardial Singh, who was lying on cot with his face up, over turned that Nahar Singh struck him with his spear in his back, that on enquiry as to why they caused injuries to Hardial Singh, the accused decamped, that Hardial Singh was carried on cot to the water -pump at a distance of 3 karams in the vacant site belonging to Nahar Singh as he asked for water and that after he was served with water, he fell down on the ground from the cot. Gurdial Singh is then said to have contacted Dr. Harbhagwan, a medical practitioner in the village. After seeing the precarious condition of Hardial Singh, he advised that he should be removed to some good hospital. Hardial Singh was carried on a cot to the Primary Health Centre at Langowal at a distance of 6 miles from the village, Dr. Surinder Nath Mittal, Incharge of the Centre, examined Hardial Singh at 5.55 a.m. on June 9, 1966. He found two injuries on his person, one an incised wound on the right side of abdomen with peritoneum cut and the omentum coming outside and another incised wound on the right side of the back below the 7th cervical on the margin of vertebral column. According to the opinion given by him, the injury on the abdomen was dangerous to life. Under his advice, Hardial Singh was taken to the Civil Hospital at Sangrur. The injured arrived in the Civil Hospital at 7.45 a. m. on that day. He was operated upon, but he expired at 10.30 p. m. on June 11, 1966. On June 9, 1966, statement of Hardial Singh was recorded by Mohinder Singh, Magistrate 1st Class, when he was found to be in a fit condition to make statement. It is Exhibit P.L. The post -mortem examination on the body of Hardial Singh was performed at 4. 00 p.m. on June 11, 1966 by Dr. K.L. Batra. According to his opinion, the probable weapon used in causing both the injuries was spear and that either of the two injuries was individually sufficient to cause death in the ordinary course of nature. He further opined that the two injuries could be caused while the deceased might have been sitting or standing and that the injury in the abdomen could be caused to the deceased when the assailant could be standing in front of him and the injury in the back could be caused while he could be standing on his back side. On coming to know about the commission of the crime in the village, Risal Singh, Assistant Sub -Inspector of Police Station, Bhikhi arrived in the village at 2.00 p. m. on June 9, 1966. Having got Hardial Singh admitted in the Hospital at Sangrur, Gurdial Singh returned to the village. He made report Exhibit P.K. to Risal Singh. Risal Singh took in possession blood -stained earth from the spot near the water -pump. Memo pertaining to its recovery is Exhibit P.Q. He recorded the statements of Darshandass Sarpanch, Bhagta Chowkidar, Ujagar Singh and others. He also recorded the statement of Smt Gejo wife of brother of Nahar Singh, he also took in possession blood -stained khes and gudri produced before him by Smti. Gejo. Memo pertaining to its recovery is Exhibit D A. The appellant was arrested on June 17, 1966. Jang Singh accused appeared before Risal Singh on June 10, 1966, but he did not arrest him. He was arrested on, June 30, 1966. The Investigation Officer also took in possession blood -stained gudela, chutahi, khes and chadra said to have been at the cot of the deceased at the time the injuries are said to have been caused to him. Memo pertaining to their recovery is Exhibit P.R. The blood -stained earth, the bloodstained bed -spreads of the deceased and those produced by Smti. Gejo recovered in the case were sent for examination to the Chemical Examiner. By his report, Exhibit P.S., the Chemical Examiner found that the garments recovered from the cot of the deceased as well as those produced by Smt. Gejo were stained with blood. Serologist, by his report Exhibit P.T., found that the blood on these garments was of human origin.
(3.) THE appellant and Jang Singh were brought to trial for offence under Section 302, Indian Penal Code. The prosecution produced in support of its case Gurdial Singh P.W. 5 as an eye -witness. Jaila, who is named as an eye -witness both in the first information report and in the statement made by Gurdial Singh at the trial, was not produced as a witness. The number and nature of injuries caused to the deceased was explained in their evidence by Dr. Surinder Nath P.W. 2 and Dr. K.L. Batra P.W. 1. The recoveries of various articles were also relied on by the prosecution.;