ARORA, J. - (1.) THIS appeal is directed against the judgement dated December 21, 1983, passed by the Additional Sessions Judge No. 2, Hanumangarh, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellants.
(2.) ACCUSED-appellant Sohan Singh was tried by the learned Sessions Judge No. 2 Hanumangarh, for the offences under Sections 302 and 452 I. P. C. , and under section 27 of the Indian Arms Act. ACCUSED-appellants Sarwan Singh and Banta Singh were tried for the offences under section 302/114/34, 323 and 452 I. P. C. The learned Additional Sessions Judge, after trial, convicted accused Sohan Singh for the offences under Sections 302 and 452 I. P. C. and Section 27 of the Indian Arms Act and sentenced him to undergo imprisonment for life and a fine of Rs. 5000/- and in default of payment of fine further to undergo two year's rigorous imprisonment under Section 302, I. P. C, under Section 27 of the Indian Arms Act, he was sentenced to undergo two years' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one months' rigorous imprisonment and under Section 452 I. P. C, he was sentenced to two years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo one month's rigorous imprisonment. All these three sentences were directed to run concurrently. ACCUSED Banta Singh and Sarwan Singh were acquitted by the learned Additional Sessions Judge under Section 302/114/34 I. P. C, but they were convicted under Sections 452 and 323 I. P. C. and each of them was sentenced to undergo two years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine further to undergo one month's rigorous imprisonment under Section 452 I. P. C. they were further sentenced to undergo six months' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's rigorous imprisonment under Section 323 I. P. C. Both the sentences were directed to run concurrently. It is against this judgement, convicting and sentencing the accused-appellants that the present appeal has been filed by the appellants. The prosecution case, as unfolded in the First Information Report, which was lodged at Police Station, Suratgarh, by Smt. Jangir Kaur on May 26, 1982 at about 10. 30 p. m. , is to the effect that the informant alongwith her two sons, namely, Moda Singh and Sadhu Singh, was sitting in the court-yard of her house situated in village Manewala, which is at a distance of 36 Kilometres from the Police Station. At about 1. 00 p. m. , she was preparing tea in the court yard and her both the sons Moda Singh and Sadhu Singh were sitting near the fire-place (CHULHA ). In the meanwhile, the accused Sarwan Singh, Sohan Singh and Banta Singh by caste Bajigar R/o Manewala entered into their house. They were armed with pistols. Accused Sarwan Singh and Banta Singh started beating Moda Singh with the butt of the pistols and Sadhu Singh got-up to rescue Moda Singh. In the meanwhile, Sarwan Singh and Banta Singh asked Sohan Singh what he was seeing, fire on him. Thereupon accused Sohan Singh fired with his pistol on Sadhu Singh, which hit on his chest on the right side. On receiving this injury, Sadhu Singh fell down. Accused Banta Singh inflicted injuries by Kasiya while Sadhu Singh was lying on the ground. Sadhu Singh died at the spot. Accused Banta Singh and Sarwan Singh inflicted injuries on the head and back of Moda Singh. She raised alarm and all the accused ran away. After hearing the alarm, the villagers collected there. It was further averred in the F. I. R. that the deadbody of Sadhu Singh and the injured Moda Singh are lying on the ground at the place of the occurrence and she had come there alongwith Bhoor Singh to lodge the report and the delay in lodging the report is on account of the fact that she could not get conveyance. The motive given by the informant in this report is that about four to five years before, Punjab Police came to their village to recover the wife of Moda Singh, which was objected by Moda Singh and in that, accused Sarwan Singh and Sohan Singh helped Moda Singh and on account of this obstruction, the Punjab Police got registered a case against Moda Singh, Sarwan Singh and Sohan Singh and they are facing trial in the Court at Suratgarh and they demanded the expenses incurred in connection with that criminal case and Moda Singh refused to make payment and asked them that they should bear their own expenses and, therefore, accused Sarwan Singh and Sohan Singh were angry with him. The prosecution, in support of its case, examined six witnesses and, also, placed reliance over 38 documents. The nature of the evidence, produced by the prosecution, consists of the evidence of two eye-witnesses, namely, PW 1 Jangir Kaur and PW 2 Moda Singh. The evidence of these two eye-witnesses is sought to be corroborated by the evidence of PW 6 Dr. S. P. Jhanwar and PW 3 Bhajan Singh, the Investigating Officer and that of PW 4 Gurudev Singh, Head Constable and PW 5 Phool Chand Constable. The prosecution, also, placed reliance over the recoveries of the three pistols from these three accused, alleged to have been recovered at their instance and on the informations supplied by them. We have heard learned counsel for the appellants and the learned Public Prosecutor assisted by Mr. H. S. S. Kharlia counsel for the complainant, and perused the judgement passed by the Court below and the record of the case. The case of the prosecution is mainly based on the statements of the two eye-witnesses namely, PW 1 Jangir Kaur and PW 2 Moda Singh. So far as the other witnesses are concerned, PW 6 is Dr. S. P. Jhanwar, who conducted the post-mortem on the deadbody of the deceased Sadhu Singh and, also, examined the injuries on the person of PW 2 Moda Singh. PW 3 Bhajan Singh is the Investigating Officer, who conducted the investigation and presented the challan. PW 4 is Gurudev Singh Head Constable, who was the Malkhana Incharge and in whose possession, the five sealed packets, relating to the case No. 131 dated May 26, 1982, remained intact. His evidence is that the five sealed packets were deposited by the Station House Officer in the sealed condition, which were entered in the Malkhana Register and were given to Phool Chand Constable for F. S. L. examination. PW 5 Phool Chand is the Constable, who took the sealed packets for F. S. L. examination to the State Forensic Science Laboratory, Jaipur, and deposited the same there.
(3.) SO far as the recovery part is concerned, we have three informations. Ex. P. 14 is the information given by accused SOhan Singh under Section 27 of the Indian Evidence Act, on the basis of which it is alleged that the recovery of one pistol was made. Ex. P. 18 is the information under Section 27 of the Indian Evidence Act given by accused Sarwan Singh regarding recovery, on the basis of which the alleged recovery of the pistol was made. Ex. P. 22 is the information under section 27 of the Indian Evidence Act given by accused Banta Singh and on the basis of which the recovery of one pistol was made by the Station House Officer. These three informations do not state that these were the accused who had placed the pistols at the places and got them recovered. The informations only state that the pistols have been hidden near the tree (Taali) in the Sarkandas. Therefore, it cannot be said that these recoveries were at the instances of the accused-appellants, who gave informations which led to the discoveries and they were the persons who concealed them there. This evidence of recoveries, therefore, cannot be read against the accused as to make such circumstances, incriminating, it must be shown that the appellants themselves had concealed the pistols there. The recoveries of these three pistols, thus, cannot be said to be made at the instance of these three accused, and therefore, the recoveries of these pistols is of no help to the prosecution. Moreover, the recoveries have been made from an open place accessible to all. Though the recovery of the pistol was made at the instance of SOhan Singh (accused-appellant) and the pallets were, also, recovered from the deadbody, but neither the pallets nor the pistol was sent to the Ballistic Expert and no report of the Ballistic Expert has been placed on record by the prosecution. Whether the pistol was in a working order and these pallets were fired from the cartridge which was fired from this pistol, is not proved. In the absence of these materials, this pistol, can neither be connected with the crime nor with the accused SOhan Singh and the prosecution cannot take any benefit from this recovery. Thus, there remains only the evidence of the two eye-witnesses, namely, PW 1 Jangir Kaur and PW 2 Moda Singh. Now, we have to consider, whether these witnesses have seen the occurrence and whether they are reliable witnesses? We first take the evidence of PW 1 Smt. Jangir Kaur. She has stated that the accused are closely related to her. About a year before the day of the occurrence, at about 1. 00 p. m. , she was in her house and was preparing tea in the kitchen. Both her sons Sadhu Singh and Moda Singh were sitting near her. All the three accused, armed with pistols, came there. Accused Sarwan Singh and Banta Singh immediately after coming to her house, started beating Moda Singh on his head with the butt of their pistols. When Sadhu Singh got-up in order to save Moda Singh, Banta Singh and Sarwan Singh asked Sohan Singh, "what you are seeing, fire. " whereupon accused Sohan Singh fired at Sadhu Singh, which hit on his chest. On receiving the fire-shot, Sadhu Singh fell down and accused appellant Banta Singh inflicted Kasiya-blow on the elbow of Sadhu Singh. Thereafter the accused ran away. She raised alarm and on hearing the sound of the pistol as well as on hearing the cries, several persons from the village collected there. Thereafter she went to the village for arranging either a jeep or a tractor, but she could not get either of them and, therefore, she went on foot to lodge the report at the Police Station. She could not got bet the first and the second buses and at last, she got the third bus and reached Suratgarh bus stand and thereafter went to the police station and lodged the report Ex. P. l, which was read over to her and she put her thumb impression. Bhoor Singh accompanied her. In the night, the police came with her in the village, the Station House Officer left two/three police constables to keep a watch over the deadbody of Sadhu Singh and the Station House Officer again came next day at about 7. 00 a. m. , prepared the site- plan, inspection memo, recovered the deadbody, also made recoveries of wads. The doctor, also, conducted the post-mortem on the deadbody of Sadhu Singh. The recoveries of blood-stained clothes of Sadhu Singh, blood-smeared soil etc. were, also, made and they were seized and sealed;. Kasiya was, also, recovered. She has, also, stated that Moda Singh was married at Sardarpura. Once the brother-in-law of Moda Singh brought the police to her village and there was an encounter with the police by Moda Singh, in which Sarwan Singh and Sohan Singh helped Moda Singh and a case in connection with that encounter is going on and Sohan Singh demanded the money for meeting the expenses in that Criminal Case, upon which Moda Singh said that where from he can give him the money and this was the bone of contention, due to which the accused have killed Sadhu Singh. Though being the mother and the lady, her presence at the house is more probable, but whether she was present at the scene of the occurrence at the time when Sadhu Singh was murdered, that question has to be looked-into. Though this witness has admitted that she raised cries, after the accused killed Sadhu Singh and 20-25 persons collected there, but she could not point out the name of any of these persons on the ground that she became unconscious. This explanation given by this witness appears to be highly improbable and unreliable because according to her statement, she immediately thereafter went to the village,tried to take a jeep or a tractor in order to lodge the report in the Police Station and in this connection, she contacted Alam Singh and Mukhtiar Singh. In avoiding reply to this question, it appears that she has taken this stand otherwise she was conscious. She avoided to give the names of the witnesses collected there because no independent witness, who came there immediately after the occurrence, has been produced by the prosecution. This witness has further stated that she covered a distance of eight to nine 'kos' on foot and reached near the canal of Manewala, wherefrom she got the bus. Though there is a regular bus service from Manewala to Suratgarh, as has been admitted by PW 2 Moda Singh, the son of this witness, who has specifically stated that the frequency of the bus services from Manewala to Suratgarh is between 1-1/2 hours. The statement of PW 2 Moda Singh on this aspect is as under : ***** When a person can get a bus from Manewala itself then there was no question of covering a distance of 8 to 9 kms on foot for catching the bus. If the bus was not available at that time, she could have got another bus after the lapse of 1 1/2 hours. Moreover, she was a lady of 70 years and her covering a distance of 8 to 9 kus (i. e. , 25 kilometers) on foot in order to catch the bus, does not appear to be probable. She has stated that she lodged the report and in the report she has stated that the deadbody of Sadhu Singh and the injured Moda Singh are lying at the place of the occurrence, but a bare perusal of the injuries found on the person of Moda Singh clearly shows that the injuries were superficial in nature and there was no question of his becoming unconscious after receiving such superficial injuries. The story given by this witness stands falsified from the attending circumstances. The site plan Ex. P. 4 was prepared by PW 3 Bhajan Singh at the instance of this witness. PW 3 Bhajan Singh has proved Ex. P 4 site plan and Ex. P. 4-A, the description memo. According to this site plan, Moda Singh was sitting at Place 'a' where accused Sarwan Singh and Banta Singh inflicted injuries to him. 'b' is the place where Sadhu Singh was sitting and was hit by accused Sohan Singh from the place 'g'. 'c is the place, which has been shown in the site-plan where PW 1 Smt. Jangir Kaur was sitting. If we see the site-plan then the case of the prosecution stands falsified because standing at place 'g' if a person would have fired at 'b' then the person standing at point 'a' must have received the injury of fire as 'a' is the place in between 'a' and 'b'. According to the prosecution, accused Sarwan Singh and Banta Singh inflicted injuries on the person of Moda Singh, who was sitting at place 'a' while Sohan Singh fired from place 'g' at Sadhu Singh, who was sitting at place 'b' and tried to get-up. The non-presence of any injury on the person standing at place 'a' in between Sohan Singh and Sadhu Singh, when Sohan Singh fired on Sadhu Singh, clearly shows that Moda Singh was not at that place otherwise he would have certainly received the fire-injury. The site-plan, thus, clinches the issue and clearly shows that the witness PW 1 Smt. Jangir Kaur is not speaking the truth and she has not seen the occurrence and most probably she was not present there. Moreover, this witness has stated that Sadhu Singh fell down at that place and breathed his last, but when the police came, the deadbody was recovered on the cot, which was at place 'd', i. e. , at some distance. No blood was found near the place 'b' where, according to the prosecution, deceased Sadhu Singh got the fire injury, nor is there a trail of blood from place 'b' to 'd'. According to PW 3 Bhajan Singh, blood was found near place 'f', which is near to the cot. This, also, falsifies the prosecution version. This witness has nowhere stated that they took up the deadbody of Sadhu Singh from place 'b' and placed it on the cot after he died, though PW 2 Moda Singh tried to explain this and stated that he and his mother took-up the deadbody of Sadhu Singh and placed the same on the cot. Normally, it is not expected that after the murder has taken place, the position of the deadbody is changed and the deadbody is taken from the ground and placed on a cot. but even if it may be taken to be true, then in that process the person, who placed the deadbody on a cot, should have got some blood-stains on his cloth. But no blood-stained clothes either of PW 1 Smt. Jangir Kaur or PW 2 Moda Singh were taken. Taking an over-all picture of the case and the critical examination of the statement of this witness shows that this witness is not wholly reliable and no conviction can be based on the testimony of this witness. The next eye-witness, produced by the prosecution is PW 2 Moda Singh. PW 2 Moda Singh, in his statement before the Court, has stated that about a year before, at about 1. 00 p. m. , he, his brother deceased Sadhu Singh and his mother were sitting near the fire-place (CHULHA) and his mother was preparing tea. These three accused entered into wheir house. They were armed with pistols. Banta Singh and Sarwan Singh started inflicting blows with the butt of the pistols on the head of Sadhu Singh. When he tried to get-up in order to save Sadhu Singh, thereupon accused Banta Singh and Sarwan Singh asked Sohan Singh to fire at Sadhu Singh, whereupon Sohan Singh fired towards Sadhu Singh, which hit on the middle of the chest and Sadhu Singh fell on the ground. Thereafter accused Banta Singh inflicted injuries with Kasiya on his left elbow. Thereafter accused ran-away. His mother raised alarm and on hearing her alarm, as well as the sound of the fire, the villagers collected there. Sadhu Singh died on the spot. After the death of his brother, his mother went to the village for arranging a jeep or a tractor but as no conveyance could be arranged, therefore, his mother went to the police station to lodge the report and he remained sitting with the deadbody of Sadhu Singh. He has, also, stated that it is only on account of the demand of money by accused Sohan Singh in connection with the litigation expenses which he refused to pay that Sohan Singh and other have killed his brother. According to this witness, the accused Sarwan Singh and Banta Singh inflicted injuries on his head as well as on his back,but no injury was found on the back of this witness. According to this witness, the injuries were inflicted by the butt of the pistols. The infliction of the injury on the person of this witness appears to be improbable. Nobody who comes armed with a pistol with an intention to kill this witness and when he was found there, would inflict injury only by the butt of the pistols and will not fire and as such this statement does not inspire confidence. When the accused, who has inimical relations with this witness, came armed with pistols then it is not expected that they would not like to kill him and would kill his brother. The presence of this witness, also, stands falsified by the site-plan and the conduct of the witness. According to the prosecution case, this witness was sitting at place 'a' where the accused Banta Singh and Sarwan Singh inflicted injuries while the deceased Sadhu Singh was sitting at place 'b' and tried to get-up and was hit by Sohan Singh, who was standing at place 'g'. 'a' is the place in between 'b' and 'g' and if anybody fires from place 'g' on a person sitting or standing at point 'b' then the person sitting or standing at place 'a' must have received the fire-arm injury. No fire-arm injury has been found on the person of this witness. Moreover, this witness has stated that he and his mother took-up the deadbody of Sadhu Singh from the ground and placed it on the cot, but no blood was found on the clothes of this witness or on the clothes of his mother which, also, falsifies his presence at the scene of the occurrence. He was a youngman of about 25 years and if he would have been there, then instead of sending his mother to lodge a report (who is aged about 70 years) he himself would have gone there. No independent witness of the locality or of the village has been produced by the prosecution, who could have proved the presence of this witness at the time of the occurrence in the house. He has admitted that several persons of the village came there after hearing the cries and he has given the names of some of those persons, viz. , Ganga, Pali Lal, Balwant Singh, Munshi Ram, Tulsi Ram and Ujagar Singh, but none of these persons have been produced by the prosecution. There is one strange feature in this case, also. Though according to the doctor, this witness was examined by him at about ;