- (1.) THIS appeal has been filed against the judgement of the learned Sessions Judge, Sriganganagar dated January 28, 1988 by which he has convicted the accused-appellants under Section 302 read with section 34, I. P. C. The accused-appellant No. 2 Amarjeet Singh has also been convicted under Section 324, I. P. C. Sentences of life imprisonment and two months' rigorous imprisonment have been awarded for the said first and second offences respectively.
(2.) THE facts of the case giving rise to this appeal may be summarised thus. On July 23, 1976 at 6 AM. , the informant Jaswant Singh P. W.-l lodged an oral report in the Police Station, Sadulshahar (Sriganganagar) that in the village Harsinghpura (7 miles from the police station, Sadulshahar) his house and the house of his brother Jarnail Singh P. W.-3 are situated in the old Abadi and the newly constructed house of his son Mandar Singh (deceased) in the new Abadi. At about 12 O'clock in the night (intervening 22nd and 23. 07. 1976), he heard the cries of Manjeet Kaur P. W.-2, wife of his son Mandar Singh, that her husband had been killed. On hearing it, he, his brother Jarnail Singh P. W. 3 and his son Tej Singh ran towards the house of Mandar Singh. THEy saw Banta Singh and Amarjeet Singh (accused-appellants and Kikar Singh of their village coming out of the house of Mandar Singh and running towards the north. Banta Singh and Amarjeet Singh were having Gandasas and Kikar Singh a sword, in their hands. Before their arrival, Baisakh Singh had already arrived there. Manjeet Kaur P. W.-2 was found weeping and crying and Mandar Singh was found dead with serious injuries on his body. Manjeet Kaur P. W.-2 told them that the accused-appellants and Kikar Singh had attacked Mandar Singh with Gandasas and sword. Litigation is going on with Kikar Singh and others. He has come to the Police Station after leaving Baisakh Singh and Tej Singh at the place of occurrence. F. I. R. Ex.-P/1 was drawn and a case under section 302, I. P. C. was registered. After completing the investigation, a challan was filed against the accused-appellants and Kikar Singh. As none of the accused could be apprehended, proceedings under Section 299, Cr. P. C. were taken against them. In execution of the standing warrants issued against them, the accused-appellants were arrested on January 16, 1986. THEreafter, fresh challan was filed against them showing the co-accused Kikar Singh as an absconder. Charges under Section 302 read with section 34 and 302, I. P. C. were framed against both of them. Charge under Section 324, I. P. C. was also framed against the accused Amarjeet Singh. THE prosecution examined informant Jaswant Singh P. W. 1, widow Manjeet Kaur P. W.-2 and uncle Jarnail Singh P. W.-3 as eye-witnesses, Dr. Ramesh Kumar Baweja P. W.-4 who conducted the post-mortem examination on the dead body of the deceased Mandar Singh and examined the injured Manjeet Kaur P. W.- 2, the attesting witnesses Jaskaran Singh P. W.-6, Sub-Inspector Tara Chand P. W-7 who arrested the accused-appellants and filed challan against them and the investigating officer Vichitra Kumar P. W. 8 and tendered and proved 23 documents. The accused persons have disclosed in their statements recorded under Section 313, Cr. P. C. that they never absconded and the prosecution story and the evidence given against them are false. They did not produce any evidence in their defence. After hearing the learned Public Prosecutor and the learned counsel for the accused, the learned Sessions Judge convicted and sentenced them as said above. It has been contended by the learned counsel for the accused-appellants that the murder of the deceased Mandar Singh took place during the night intervening 22nd and 23. 07. 1976 at about 12 O'clock. According to the Hindi Calendar month, 11th (Ekadashi) of Krishna Paksh was on both these dates i. e. , 22nd and 23. 07. 1976 and as such it was a pitch-dark night at 12 O'clock. He further contended that according to the prosecution case, Baisakh Singh was having a torch and in its light the assailants were recognised, the prosecution has not produced him and it is not mentioned in the F. I. R. that Baisakh Singh was having a torch. He also contended that it is not the prosecution case that there was any other source of light in the Chowk of the deceased Mandar Singh where the occurrence took place. He further contended that Manjeet Kaur P. W.-2 was not present at the time of the occurrence otherwise her clothes and cot would have been stained with blood particularly when the compound-wall of the Chowk of the house of the deceased and other things were found having blood. He also contended that the medical evidence does not support the statements of Jaswant Singh P. W.-l, Manjeet Kaur P. W.-2 and Jarnail Singh P. W.-3. He lastly contended that the accused-appellants have falsely been implicated due to previous litigation. He relied upon Maninder Singh vs. State of Punjab, (1), Ram Pukar Thakur & Others vs. State of Bihar, (2), Bapulal vs. State of Rajasthan, (3) and Fateh Singh vs. State of Rajasthan (4 ). The learned Public Prosecutor duly supported the judgment under challenge. He contended that the accused-appellants were absconding for last about ten years, there was previous enmity, it provided the motive to murder Mandar Singh and deceased's father Jaswant Singh P. W.-l and uncle Jarnail Singh P. W.-3 saw the accused-appellants coming out of the house of the deceased Mandar Singh when they reached there. He relied upon 1988 RLW 12 (5) and AIR 1960 Rajasthan 219 (6 ). It is well proved from the evidence on record that Mandar Singh s/o Jaswant Singh P. W.-l, r/o village Harsinghpura was murdered during the night intervening 22nd and 23. 07. 1976. The question is whether this murder was committed by the accused- appellants along with the absconder Kikar Singh. According to the Hindi Calendar month of the relevant year, 'gyaras' (Ekadashi) of Krishna Paksh was on both the aforesaid days i. e. , 22nd and 23. 07. 1976. The place of occurrence is at a distance of about 7 miles from the Police Station Sadulshahar. F. I. R. Ex.-P/1 was registered at 6 A. M. on July 23, 1976. The post-mortem report Ex.-P/12 does not mention the date and hour of the death. It is stated in it that the post-mortem examination was done at 11. 45 A. M. on July 23, 1976. Dr. Ramesh Kumar Baweja P. W. 4 who conducted the post-mortem examination has deposed that the death of the deceased would have taken place within 4-12 hours before his examination. These facts support the prosecution case that the murder took place in the night intervening 22nd and 23. 07. 1976 at about 12 O'clock. At that time the night was pitch-dark. Jarnail Singh P. W. 3 admits in his cross-examination that the night in which the occurrence took place was dark night. The source of light is not mentioned in the F. I. R. Ex. P/1. The prosecution case is that the accused-appellants were recognised in the light of the torch of Baisakh Singh who has not been produced.
(3.) MANJEET Kaur P. W.-2 has deposed that she, her husband Mandar Singh and children were sleeping on different cots in the Chowk of their house, at mid night on hearing commotion she got up and saw the accused Kikar Singh with Kripan and Banta Singh and Amarjeet Singh with Gandasas, they were inflicting injuries on her husband Mandar Singh, when she tried to save her husband the accused Amarjeet Singh caused an injury on her right hand with a Gandasa and struck a lathi blow on her right thigh, she fell down, on her hue and cry Baisakh Singh came with a lighted torch, thereafter, her father-in-law Jaswant Singh P. W.-l, mother-in-law Jangir Kaur, uncle-in-law Jarnail Singh P. W.-3 and Tej Singh came and the accused persons ran away. She has also said that a quarrel took place in between her husband and the said accused persons about 2-3 months before the said occurrence. Jaswant Singh P. W.-l has deposed that on hearing the hue and cry of MANJEET Kaur P. W.-2, he ran towards the house of Mandar Singh alongwith his brother Jarnail Singh P. W.-3, his son Tej Singh and wife Jangir Kaur, there he saw Baisakh Singh standing with a lighted torch and saw the accused persons running away. Jarnail Singh P. W.-3, brother of Jaswant Singh P. W.-l, has deposed that in the mid-night his brother Jaswant Singh asked him to get up stating that his son Mandar Singh had been killed, he alongwith Jaswant Singh, Jangir Kaur and Tej Singh ran towards the house of Mandar Singh, there he saw Baisakh Singh running towards the house of Mandar Singh with a lighted torch in his hand and the accused persons coming out from the house of Mandar Singh. None of, these witnesses has said that they saw the assailants in the light of the torch which Baisakh Singh was carrying. Admittedly, Baisakh Singh has not been examined. On 23. 9. 1986, Jaswant Singh P. W.-l moved an application that Baisakh Singh has aided with the co-accused Kikar Singh and as such he was left. The site-inspection memo Ex.-P/4. A shows the place by letter 'c' where Baisakh Singh was standing with a lighted torch. Admittedly, this fact was not noted by the Investigating Officer himself who prepared the site- plan Ex. P/4 and the site-inspection memo Ex.-P/4. A at the site. This fact was noted in these documents at the instance of the attesting witnesses. This is hit under Section 161, Cr. P. C. and cannot be read in evidence. Reference of Tohari Singh vs. State of U. P. (7) and Jeet Singh vs. State of Punjab (8), may be made here. Manjeet Kaur P. W.-2 has not given the essential details regarding the attack of the assailants upon her husband Mandar Singh. In her cross examination, she says that she cannot tell the injuries inflicted by individual assailants as all the three assailants were simultaneously inflicting injuries to Mandar Singh. She could not also tell about the position of the assailants. She has further deposed that the accused Amarjeet Singh inflicted injuries with a Gandasa on her right hand and with a lathi on her right leg when she tried to save and fell upon her husband. In the cross-examination, she further disclosed that the assailants did not restrain themselves from inflicting injuries on her husband Mandar Singh despite her repeated efforts to shield him. The prosecution has produced and proved her injury report Ex.-P/3. According to it, she received following two minor injuries : - 1. Incised wound 1/8" x l/4"x 4" above right wrist, lateral aspect. 2. Swelling right thigh internal side. 3 " round area. The injury No. 1 is very superficial. Injury with a Gandasa-blow should have been severe. The investigating officer Vichitra Kumar P. W. 8 inspected the site on 23. 07. 1976 and he found blood beneath the cot of the deceased, on the compound-wall, on the bag which was lying near the cot of the deceased and also on his shirt which was hanging on the wall. These facts are also mentioned in the site-plan Ex.-P/4 and site-inspection memo Ex.- P/4. A. There is nothing on the record to indicate that blood was found on any of the clothes of Manjeet Kaur P. W.-2 or on her cot which, according to the prosecution case, was at a distance of 2 feet from the cot of the deceased Mandar Singh. As already said above, the assailants continued to inflict injuries on Mandar Singh despite Manjeet Kaur's efforts to shield him. If she would have acted so, her clothes must have received some blood stains. The conspicuous absence of blood on any part of her clothes and also on her cot greatly creates doubt in her presence at the time of the said occurrence. Even if she was present she could not have seen the assailants in the said pitch-dark night. It is admitted by Jaswant Singh P. W.-l, Manjeet Kaur P. W,-2, Jarnail Singh P. W.-3 and Jaskaran Singh P. W.-6 that a quarrel took place in between the deceased Mandar Singh on the one hand and the accused-appellants and Kikar Singh two-three months prior to the said occurrence. This enmity gave rise to strong suspicion to Jaswant Singh P. W.-l, Manjeet Kaur P. W.-2 and Jarnail Singh P. W.-3 against the said accused persons that they committed the murder of Mandar Singh. ;