JAIN, J. - (1.) THIS appeal has been filed against the judgment of the learned Sessions Judge, Sri Ganganagar dated April 21, 1987 by which he has convicted the accused-appellant Gurdeep Singh under Section 302, I. P. C. and Section 27, Arms Act and sentenced him to undergo imprisonment for life and two years' rigorous imprisonment respectively and the accused-appellant Mithu Singh under Section 302, read with Section 34 and 114, I. P. C. and sentenced him to imprisonment for life, for committing the murder of Bohar Singh. The facts of the case giving rise to this appeal may be summarised thus.
(2.) ON March 2, 1986 at 1. 05 A. M. Amar Singh P. W. 1 lodged F. I. R. Ex. p/1 in the Police Station, Sadul Shahar (Sri Ganganagar ). It runs as under : ****** It was registered under Sections 302 read with Section 34, I. P. C. and 27, Arms Act. The Investigating Officer Budha Ram P. W. 8 prepared site plan Ex. P/2, site inspection memo Ex. P/2a, memo of the dead body of Bohar Singh Ex. P/3a and Panchayatnama Ex. P/4a, cloths of the deceased were taken through recovery memo Ex. P/6, the post-mortem examination was got conducted and the report Ex. P/5 was obtained. ON March 3, 1986, the accused-appellants Mithu Singh and Gurdeep Singh were arrested, they gave information Ex. P/10 and P/ll respectively for the recovery of Gandasa Article 3 and Pistol Article 1 and same were recovered through recovery memoes Exs. P/12 and P/13 respectively. Blood stained cloths, pistol and cartridge were sent to the Forensic Science Laboratory, Rajasthan, Jaipur and their reports Ex. P/15, P/16 and P/17 were received. Challan was filed in the court of the Munsif-cum-Judicial Magistrate, Sri Ganganagar against the accused-appellants who committed them to the court of Sessions. The prosecution examined the informant Amar Singh P. W. I, his son Gurjant Singh P. W. 2 and Boga Singh P. W. 4 as eye witnesses, Dr. Som Prakash Jakhar P. W. 3 who conducted the post-mortem examination on the dead body of deceased Bohar Singh, the attesting witness, (of the recoveries of Pistol Art. l and Gandasa Art. 3), Karnail Singh P. W. 5, Incharge Malkhana Parmeshwar Lal P. W. 6, Police Constable Richpal Singh P. W. 7 and the investigating officers Budh Ram P. W. 8 and Tara Chand P. W. 9. The accused-appellants admit in their statements recorded under Section 313, Cr. P. C. that they had a dispute with Amar Singh P. W. 1 over a water course and they were arrested by the police. The remaining prosecution evidence has either been denied or ignorance has been pleaded by them. They have further stated that the joint land was being cultivated by Amar Singh P. W. 1 and his sons only and not by the deceased Bohar Singh as he was residing in Punjab. The accused-appellant Gurdeep Singh has also stated that Amar Singh P. W. 1 got forged thumb impression of his father on the application for the change of water course, he filed a complaint against him and ziledar, it is still pending, Boga Singh P. W. 5 inflicted injuries to him on October 15,1984 and report Ex. D/4 was lodged against him in the police station, father of Karnail Singh P. W. 5 contested the election of Sarpanch and he opposed him and as such he has falsely been implicated in this case. The accused persons examined Hanuman Chakkiwala DW/1 in their defence. After hearing the learned Public Prosecutor and the learned counsel for the accused-appellants, the learned Sessions Judge, Sri Ganganagar convicted and sentenced the accused-appellants as said above. It has been contended by the learned counsel for the accused- appellants that the learned trial court has seriously erred in not properly and correctly appreciating the evidence on record, it is replete with material contradictions, inconsistencies and discrepancies, there was no motive to murder Bohar Singh, statements of prosecution witnesses were recorded under Section 161, Cr. P. C. after great delay, neither blood nor a pallet was found there and the occurrence did not take place where it is alleged by the prosecution. He further contended that the evidence of extortion is of very weak type, if the accused-appellant Mithu Singh was present at the place of occurrence he would have used his are in the ordinary course of nature and admittedly deceased Bohar Singh did not receive an injury of nature caused by an axe. He lastly contended that due to enmity the accused-appellants have falsely been implicated. He relied upon Hakumat Rai vs. State of Rajasthan, (1), Bir Singh and Ors. Vs. State of U. P. (2), Nihal Singh vs. State of Rajasthan (3), Ganesh Bhavan Patel and another vs. State of Maharashtra (4) and Lala Ram and others vs. State of U. P. (5 ). The learned public prosecutor duly supported the conviction and sentence under challenge. He contended that the FIR Ex. P/1 was lodged within two hours and 5 minutes of the occurrence when the Police Station was at a distance of six miles therefrom, it was duly received by the concerned Magistrate the same day and the names of both the accused-appellants and the said prosecution witnesses find mention in it. He further contended that the motive to do away Bohar Singh is well proved from the evidence on record and also admitted by the accused-appellants that litigation was going on in between the informant Amar Singh P. W. 1 and the accused-appellants over certain water course. He also contended that there had not been any delay in recording the statements of the prosecution witnesses under Section 161, Cr. P. C. and they were promptly recorded. He further contended that much blood did not come out from the dead body of deceased Bohar Singh, there was sand at the place of occurrence, a good number of persons had moved over the place of occurrence and as such blood could not be seen there. He also contended that the site plan Ex. P/2a which was promptly prepared duly shows two lamp posts near the place of occurrence. He lastly contended that there is no material contradiction, discrepancies and inconsistencies in between the statements of the various prosecution witnesses and the minor discrepancies appearing therein go to show that the witnesses have given correct version of the prosecution case. He relied upon Nachhittar Singh vs. The State of Punjab (6), Chatar Singh and another vs. State of Haryana (7), Chimanbhai Ukabhai vs. State of Gujarat (8), Shrishail Nageshi Pare vs. State of Maharashtra, Ram Prasad vs. State of U. P. (9) and Jagdish vs. State of M. P. (10 ).
(3.) THE first question for consideration in this case is whether there was light at the place of occurrence at the time of the occurrence. It is correct that the FIR Ex. P/1 is silent on this point. Site Plan Ex. P/2 and site inspection memo Ex. P/2a were prepared in the morning of March 2, 1986. THEy show two light posts near the place of occurrence. Amar Singh P. W. I Gurjant Singh P. W. 2 and Boga Singh P. W. 4 have deposed that there was light near the place of occurrence at the time of occurrence. THE accused appellants do-not say that these light-posts have wrongly been shown in the site plan Ex. P/2. THEre is also no suggestion in the cross-examination of these eye witnesses on this point. In defence, Hanuman D. W. I has been produced. He has deposed that during these days he was running a wheat grinding machine with electricity and during the night intervening 1st and 2. 03. 1986, there was no electricity. Sri Parekh Junior Engineer was also called in defence to prove this fact but he was not examined despite his appearance before the trial on the date for which he was summoned. There is yet another aspect of the matter. The site plan Ex. P/2 shows the house of the accused-appellants quite near the place of occurrence. It is the admitted case of the parties that the informant Amar Singh P. W. 1, his Son Gurjant Singh P. W. 2 and Boga Singh P. W. 4 were knowing the accused-appellants prior to the occurrence. As such there could not have been any mistake in their identity. The second question is about the effect of the absence of blood and pallets from the place of occurrence on the prosecution story. It is correct that in the site inspection memo Ex. P/2 and site inspection note Ex. P/2a, blood has not been shown at or near the place of occurrence. The site inspection memo Ex. P/2a mentions that the place of occurrence was sandy and foot prints of a large number of persons were visible there when it was inspected. Amar Singh P. W. I has deposed that very little blood came out from the injuries of the deceased Bohar Singh. This fact is also mentioned in the FIR Ex. P/1, site inspection memo Ex. P/2a, and recovery memoes of the cloths Ex. P/6. The post mortem report Ex.-P/5 shows that thoracic and alid cavities were full of blood. Dr. Som Prakash Jakhar P. W. 3 who conducted the post-mortem examination of the dead body of deceased Bohar Singh has deposed that much blood would not have come out as heart was damaged and most of the blood went to the thoracic cavity. In view of these facts and circumstances, it cannot be said that the occurrence did not take place at the place shown by A in the site plan Ex. P/2. ;