N.N.MATHUR, J. - (1.) THESE two appeals are directed against the judgment dated 18.5.1992 of the learned Additional Sessions Judge, Raisinghnagar, in Sessions Case No. 29/1988 convicting the appellant of the offence under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 200/ - and in default of payment of fine to further undergo two year's rigorous imprisonment. Appellant has also been convicted on the offence under Section 27 of the Arms Act and sentenced to three year's R.I. and to pay a fine of Rs. 200/ - and in default to further undergo one month's R.I. Both the substantive sentences have been ordered to run concurrently. While the accused appellant has preferred the appeal challenging the conviction and sentence, the State has preferred the appeal for enhancement of the sentence.
(2.) THE prosecution case as disclosed during the trial is as follows: Appellant Sub -Inspector Kundan Singh, Platoon Commander in Border Security Force, was posted at K.K. Tiba on the international border between India and Pakistan on 31st July, 1988. He was put to trial for the charge of Kidnapping and murder of Omprakash and Ram Narain, residents of village 15 -H. On 31st July, 1988, P.W. 18 Shri B.P. Ingley, Deputy Commandant, 122 Battalion, Border Security Force, lodged an F.I.R. Ex.D.8 at 9 A.M. at Police Station, Ghadsana stating inter alia that on the preceding night within the zone of 100 metre inside the international border on the outpost of K.K.Tiba, P.W.I Constable Lakhvir Singh, P.W. 2 Home Guard Pune Khan and P.W. 3 Constable Philip Khajoor were on duty. At about 11 P.M., on hearing a gunfire, he went out to alert all the Outposts, with his patrolling party, which consisted of constable Tara Chand and P.W. 15 C.P.L. Narpat Singh. At about 11.55 P.M., they noticed some suspicious movement near the border. They challenged the intruders trespassing the international border. On which the intruders shot two fires from 12 bore gun and ran towards Pakistan. In self defence, the outpost party fired 15 round of 9 MM, 11 round of 7.62 MM and 8 round of 303 on account of which two intruders died on the spot and some of them taking advantage of the darkness, succeeded in escaping. On this information, police registered a case for offence under Section 307 IPC and Section 27of the Arms Act. On the same day at 11.15 P.M., another written report Ex.P.8 was lodged by the villagers of 17H. stating that two persons of village 15 -H namely Ram Narain and Om Prakash at about 10 P.M. had gone to village 16 -H 'B' for opening water outlet. In the way, they were caught by appellant Kundan Singh and 2 -3 constables posted at K.K. Tiba of Border Security Force. The deceased Ram Narain and Omprakash were carrying with them a lantern, Kassi, watches and 'Khes'. They were asked to sit down. Appellant Kundan Singh and one constable went to the house of P.W. 7 Baghel Singh and consumed liquor at his house. They told Baghel Singh that they have caught two persons of Sarpanch Mahendra Singh. They also alleged to have stated that they would kill them. This was overheard by P.W. 4 Ses Karan, who was returning after purchasing 'Bidi' from the shop. He also alleged to have overheard that Baghel Singh was threatened by the accused appellant Kundan Singh that if he disclosed that fact to anybody, he would be killed. They also stated that deceased Ram Narain and Omprakash residents of 17 -H were taken towards the outpost near the canal and shot dead by Kundan Singh and other sepoys. It was also stated that the Border Security Force people did not allow them to go near the dead bodies. On this information, police registered a case for the offences under Section 302, 364 IPC and Section 27 of the Arms Act and proceeded with the investigation. It revealed during investigation that Kundan Singh killed Omprakash and Ram Narain three kilometres inside the international border and a fake case of encounter was prepared. It also revealed that when accused Kundan Singh, who was Platoon Commander of Outpost K.K. Tiba, killed Ram Narain and Omprakash, Lakhvir Singh, Philip Khajoor, Narpat Singh and Pune Khan were also with him. After usual investigation, police laid charge sheet against the appellant for the offences under Sections 364, 302 IPC and Section 27of the Arms Act.
(3.) APPELLANT denied the charges levelled against him and claimed trial. The prosecution in support of the case examined eighteen witnesses and produced number of documents. In statement under Section 313 of the Code of Criminal Procedure, appellant denied the correctness of the prosecution evidence appearing against him. He stated that the alleged eye witnesses are giving false statements against him under the pressure of the police so that they may not be charged for murder of Ram Narain and Omprakash. He also stated that when he was incharge of the outpost at K.K. Tiba, there was curfew; on the border during night. Nobody was permitted in the border area. There were oral directions that a full vigilance be kept so that not terrorists may cross the border. He established outposts at various places and posted jawans on those outposts. In the night at about 11.30 from the side of the border pillar No. 379/3, there was a gun shot fire. He went out with his patrolling party to alert jawans posted on different outposts. When he reached near 15 -H, he noticed a suspicious movement from the border side. They took the position and in defence, fired, on account of which two persons died on the spot and other intruders taking advantage of the darkness, succeeded in escaping towards Pakistan. He immediately informed the Company Commander Shri Hari Chand, Mahendra Singh, Assistant Commandant, reached on the spot. They made an enquiry from everyone and also inspected the site. In the morning, Battalion Commander Shri Murlidhar arrived. He also enquired into the matter. The Dy. Commandant Shri Ingle gave information of the incident to the police. He produced the said F.I.R. Ex.D.8. He also stated that he did not know Omprakash and Ram Narain. He was posted in the area only one week before. He also stated that a large number of persons had assembled. There was lot of pressure on the police of the villagers. Thus is satisfy the villagers and their political leaders, a false case has been foisted against him.;