- (1.) - This appeal is directed against the judgment dated March 28, 1984 passed by the Additional Sessions Judge, Raisinghnagar by which appellants Pyara Singh, Gurdayal Singh and Jela Singh & Jarnel Singh were convicted under sections 302/34, 364/54 and 341 I. P. C. and sentenced to imprisonment for life and a fine of Rs. 5000/- each, in default of payment of fine to undergo five years R. I. each on the first count, three years R. I. and fine of Rs. 1000/each, in default of payment of fine to undergo one years R. I. on the second count and one months R. I. each on the third count with an order that the substantive sentences for all the charges shall run concurrently.
(2.) BRIEFLY stated the prosecution case is that on December 3, 1983 at about 6. 30 Naseeb Kaur (P. W. 2), along with her husband Bhagwant Singh was returning after collecting cotton from the field. They placed the cotton in the house of Mahendra Singh (P. W. 1) brother of Bhagwant Singh and proceeded towards their own Dhani. Gurjeet Singh was also with them. When all the three reached near the Dhani of appellant Pyara Singh, the three appellants and one Resham Singh (since acquitted by the trial court) came out from the field of cotton. Pyara Singh is said to be armed with 'barchi', Gurdayal Singh with 'gandasi', and Jaila Singh with 'lathi' at that time. Pyara Singh gave a 'lalkar' to Bhagwantsingh using the words 'tagdahoja'. He told him that as he was not comapromising with him he would be done to death. Bhagwant Singh tried to run away towards the 'dhani' of Gulzarasingh (P. W. 3) but the four miscreants cought hold of him & gave a beating. Gurdayal Singh warned that in case there would be murder at his dhani he would go against the assailants. The assailants therafter took Bhagwant Singh dragging towards the 'dhani' of Pyara Singh. Naseeb Kaur (P. W. 2) asked them to release her husband and she went behind the assailants but she was warned that in case she would follow them, she would also be done away with. They told her that Bhagwant Singh was their enemy The assailants took Bhagwant Singh inside the 'dhani'. Shrieks of Bhagwant Singh were heard for sometime and not thereafter. Naseeb Kaur along with Gurieet Singh went to the 'dhani' of Mahendra Singh and informed him about the incident. Mahendra Singh having fracture in his leg, asked Naseeb Kaur to go to the Police Station. They went to Gurjanta Singh, who accomopanied them to the Police Station in the Tractor of Amarjeet father of Gurieet At the information lodged F. I R (Ex. P/l) was recorded. Balwant Rai (P. W. 11) Station House Officer of that Police Station went to the site and in the morning proceeded with necessary investigation. The dead body of Bhagwant singh was found covered with a jute-bag in the 'dhani' of Pyara Singh beneath a tree The S. H. O. prepared the required memos. The autopsy over the dead body was conducted by Dr. Satya Prakash Sharma (P. W. 10), Medical Officer, Incharge Primary Health Centre, Anoopgarh at 2. 45 p. m. on December 4 1982. The postmortem examination report is Ex. P. 28. The Doctor noted forty injuries on the Scalp, Face, Chest, Abdomen, Right Arm, Left Arm, Left hand and left Lower Leg of the deceased. Out of these injuries two were incised wou-and three punctured wounds and the remaining injuries were lacerated wounds, abrasions and contusions. There were six fractures. The cause of death accor-dingh to the Doctor was laceration of brain due to fracture of frontal bone by a blunt weapon and shock caused by the cumulative effect of the multiple injuries on different parts of body by different types of weapons. The lacerated wound on right parietal region of the scalp was in the opinion of the Doctor suffcient to couse death in the ordinary course of nature. He however stated that even in case; injury No. 1 on the right side of forehead by which frontal bone fractured dura matter was torn and subdura hammerrhage was caused, would not have ' been there, there was likelyhood of death of the injured on account of the remaining injuries because there was excessive internal as well as external bleeding The shoes, turban and 'kada' of the deceased were taken in Session from the site vide memo Ex. P/6. Pyara Singh and Gurdayal Singh were arrested vide memos Ex. P/30 and Ex. P/31 respectively on December 11, 1982. Jernail Singh was arrested on November 14, 1982 vide memo Ex. P/32. In pusuance of the information (Ex. P/33) furnished by Pyara Singh while in custody one 'barchha' and one bed sheet with one watch with black dial and black strap tied in the corner of the bed-sheet were recovered from beneath the heap of barlay from his residential 'dhani' at his instance vide memo Ex. P/ll. In pursuance of the information Ex. P/24 furnished by Gurdayal Singh while in custody one 'gandasi' from his 'dhani' from beneath the heap of cotton lving under a cot were recovered vide memo Ex. P/24 at his instance. In pursuance of the information Ex. P/35 furnished by Jaila Singh one lathi was recovered at his instance from the roof of his residential 'kotha vide memo Ex. P/25. Articles recovered were seated and deposited in the mal khana of the Police station and were sent for Chemical Examination through P. W. 9 Randhir Singh L. C. of that Police Station. The identification parade of the watch and the bed-sheet was conducted by Shri R. K. Jain. Chief Judicial Magistrate on December 9, 1982 and the articles were identified by Naseeb Kaur (P. W. 2) wife of the deceased as belonging to her husband. The identification memo was Ex. P/38. Upon completion of necessary investigation charge sheet against the appellants and Resham Singh co-accused was filed in the Court of Munsif and Judicial Magistrate, Anoopgarh, The case on committal reached the Court of Additional Sessions Judge,raisinghnagar. The learned Additional Sessions Judge chages sheeted the appellants for the offences under sections 302, 302/34, 364, 36 / 34, 341 and 120b, I. P. C. Upon denial of the charges by the accused trial proceeded Prosecution examined twelve witnesses in all. In their, statements under section 313 of the Code of Criminal Procedure all the accused denied the allegations levelled against them and stated that the witnesses were stating so out of enmity. No defence witness was examined. The learned trial Judge did not hold the case established against Resham Singh and acquitted him of the charges. He however, held the case established agenst the three appellants for the charges under sections 302/34, 364/34 and 341, I. P. C. and convicted them for those charges vide the judgment under appeal. We heard Mr. M. L. Garg, learned counsel for the appellants and Mr. Vijay Singh Choudhary, learned Public Prosecutor for the State assisted by Mr. H. S. Sandnu, learned counsel for the complainant. The learned counsel for the appellants has findings of the learned trial Judge on a number of grounds. It has been strenuously contended that prosecution case solely rests on the testimony of two witnesses viz. Naseeb Kaur (P. W. 2) and Gulzara Singh (P. W. 3) and both of them are inimical to Pyara Singh. That, the prosecution has withheld the material witnesses like Gurjeet Singh and Gurjanta Singh first being an eye witness according to the prosecution and second being the person who accompanied Naseeb Kaur to the Police Station. Learned counsel also raised the point of delay in lodging the F. I. R. and the information being sent to the concerned Court and submitted that all this shows that there was manipulation in the case. Mr. Garg emphatically argued that it is a case of no evidence in which the investigating agency has introduced Naseeb Kaur and Gulzara Singh as eye witnesses so that Pyara Singh and other may be falsely implicated. It has also been argued that the dead body was found covered with a jute bag in the 'dhani' of Pyaraisngh in open and possibility of some body else placing the dead body at that place and Pyara Singh and others having no knowledge of it cannot be ruled out. It has been emphatically argued that there were no dragging marks on the way through which according to Naseeb Kaur, Bhagwant Singh was taken by the miscreants. The learned Public Prosecutor controverting these contentions submitted that presence of Naseeb Kaur (P. W. 2) at the site stands duly established. Gulzara Singh's 'dhani' was nearby and he has supported the testimony of Naseeb Kaur in all material particulars and non examination of Gurjeetsingh would not effect the prosecution case. About Gurjanta Singh, the argument is that he was not an eye witnesses and therefore, he could not have thrown any light in the matter. The learned Public Prosecutor argued that the dead body being found in the open will not help the defence case because it was found in the 'dhani' of Pyara Singh and none else could have placed it there without the inhabitants being aware of it.
(3.) THE prosecution case rests on the testimony of Naseeb Kaur and Gulzara Singh. Gurjeet Singh was there with Naseeb Kaur. His father Amar Jeet having come to stay near the 'dhani' of Mahendra Singh for sometime they were treating him as brother and Gurjeet Singh as nephew. It is for this reason that Naseeb Kaur had stated about Gurjeet Singh being her nephew. Gurjeet Singh has also said to have accompanied Naseeb Kaur to Police Station in the Tractor. He therefore, was an important witness in the matter. THE prosecution for the reasons best known to it did not care to get this witness examined. THE order sheet dated November 17, 1983 of the trial Court shows that there was a telegram about the ailment of the Gurjeet Singh sent to the Court. THE prosecution instead of seeking further time dropped the witness. This being the position it cannot be said that the witnesses, if produced would have stated against the prosecution. . Even it is an infirmity in the prosecution care the case cannot be discarded simply because this witness has not been examined if from the statement of the other witnesses the case is established. Gurjant Singh was not an eye witness to the occurrence. Naseeb Kaur had not approached him immediately after the occurrence. In between the occurrence and her going to Gurjanta Singh she has met Mahendra Singh and narrated the facts to him. Mahendra Singh has appeared in the witness box and stated what was told to him by Naseeb Kaur. Gurjanta Singh having accompanied Naseeb Kaur to Police Station it would have been proper for the prosecution to examine him but for the reasons best known to the prosecution he was dropped as is evident from the order sheet dated July 19, 1983. That would however not be sufficient to raise suspicion on the veracity of the testimony of Naseeb Kaur. The important point would be whether Naseeb Kaur and Gulzara Singh are witnesses of credence and on their testimony the prosecution case can be held to be established. Naseeb Kaur (P. W. 2) has stated about four miscreants coming out from the field and giving a 'lalkar' to her husband and their giving a beating to him and taking him towards the 'dhani of Pyara Singh. She has also stated about hearing of shrieks of her husband only for sometime and then her going to her brother-in-law Mahendra Singh and narrating him the facts. She has also stated about Gulzara Singh (P. W. 3) being there at his 'dhani and warning the miscreants that in case they would commit murder at his 'dhani he would go against them. Similar is the version of Gulzara Singh. The learned counsel for the appellants has laid much stress on the discrepancy in the statements of these two witnesses on the point that whereas Naseeb Kaur has stated about Gulzara Singh coming out at her instance and warning the assailants, Gulzara Singh has not stated so. He has stated about the four accused giving beating to Bhagwant Singh and taking him from there and he warned the assailants but he did not go near them. According to him when the four assailants took Bhagwant Singh towards their 'dhani' Naseeb Kaur and Gurjeet Singh went to him and told him about it. He told them that what can he do, they may go to the Police. He stated that he did not go to the 'dhani' of the accused because he himself had the risk. However, on all material points Gulzara Singh (P. W. 3) has supported Naseeb Kaur (P. W. 2 ). ;