TYAGI, J. - (1.) APPELLANT Pratap Singh was prosecuted alongwith three other persons, viz. Adaram, Budhram and Juglal for offence under sec. 302, read with 34 of the Indian Penal Code for committing the murder of Surjaram but the learned Sessions Judge convicted only Pratap Singh for offence under sec. 302 (simpli-citer) and acquitted all the other three persons on the ground that sec. 34 could not be invoked in the circumstances of this case. It is against this judgment of the learned Sessions Judge, Shri Ganganagar dated 28th August, 1971 that the present appeal has been filed by Pratp Singh.
(2.) BOTH Pratap Singh and Surjaram were the residents of Village Mehrana under Police Station, Bhadra. Surjaram was the Sarpanch of Mehrana village Pan-chayat. It is clear from the evidence that there were two parties in village Mehrana, one headed by Surjaram and the other by Pratap Singh. Criminal as well as civil litigation was going on between Pratap Singh and Surjaram and, therefore, they were obviously on inimical terms. On 5th of October, 1970, P. W. 2 Nanu Singh, Tehsil-dar of Bhadra Tehsil visited Mehrana to check up the electoral rolls which were to be used for the coming panchayat elections. It is said that hot words were exchanged in the presence of the Tehsildar between Pratap Singh and Surjaram on the question of inclusion and deletion of certain names from the voters' list. According to the prosecution story, the names of the sons of Kurdaram (P. W. 1) and Maduram (P. W. 4) were deleted. On 6th of October, 1970, Surjaram alongwith Kurdaram and Maduram went to Bhadra in his jeep with a view to get the names of the sons of Kurdaram and Maduram again included in the voters' list. Of these three persons Surjaram went inside to see the Tehsildar while the other two, namely, Kurdaram and Maduram kept sitting on a Chabutra outside the tehsil building. After 15 or 20 minutes, Surjaram returned from the Tehsildar's room and informed Kurdaram that the Tehsildar was busy in some other work and, therefore, they would come to the tehsil after some time. All the three then started for going to the market. According to the prosecution, when the complainant party reached the shop of Surjeet Singh Sethi (P. W. 3) they saw Pratap Singh armed with a. 12 bore double barrel gun and Adaram having a Barchhi in his hand coming towards them from eastern side while Budhram, who was armed with a single barrel gun and Juglal who had a Barchhi in his hand, came from the northern side and surrounded Surjaram. Pratap Singh at the point of his gun threw a challenge to Surjaram to be ready to court death. Surja Ram in order to save himself immediately rushed into the shop of Surjeet Singh Sethi, but he was closely followed by Pratap Singh When Surjaram was trying to enter the inner compartment of the shop, Pratap Singh opened a gun fire towards Surjaram from a very close range with a result that the pellets hit the neck of Surjaram and he immediately dropped dead on a 'durri' which was spread in that shop. It is said that Adaram at that time was guarding the eastern door of that shop while the other two associates of Pratap Singh, namely, Budhram and Juglal were standing on the northern door of that shop. Soon after Surjaram died, the assailants left the spot and went towards the north. This incident took place at 11. 30 a. m. in the busy commercial locality of Bhadra town. When the assilants left the shop of Surjeet Singh Sethi, Kurdaram and Maduram entered the shop and having found that Surjaram was lying dead, Kurdaram directed Maduram to proceed to Mehrana to inform the relations of deceased Surjaram and he directly went to the Police Station, Bhadra which was hardly 1 Km away from the spot of occurrence to lodge the report of the incident. The first information report (Ex P. 1) was taken down by P. W 10 Anar Singh, Station House Officer and after taking down the report he immediately proceeded to the, spot for further investigation. Shri Anar Singh prepared a panchayatnama (Ex. P. 4) and Fard Surat-hal of the corpse (Ex. P. 5 ). He also took from the place of incident various articles in his possession and prepared documents Exs. P. 6, P. 7, P. 8, and P. 9. It is said that before he could proceed further, P W. 9 Manohar Lal, CO. came to the spot and directed Anar Singh to proceed in search of the assailants and he took over charge from Anar Singh to proceed with the investigation. Pratap Singh was arrested on 9th of October, 1970, his arrest memo being Ex, P. 19. On 13th of October, 1970, information was given by Pratap Singh when he was under detention regarding the whereabouts of his double barrel. 12 bote gun which was recovered at his instance. The seizure memo of the gun is Ex P. 16 which shows that it had a fired cartridge in one of the barrels while the other barrel contained a live cartridge. The gun was sent for examination to the Forensic Expert who submitted his report Ex. P. 23 but as the gun is not in any manner, connected with the incident of firing towards Surjaram, therefore, we need not discuss the evidence of the information given by Pratap Singh under sec. 27 of the Evidence Act and the consequent recovery of the gun at the instance of the accused. The police after investigation challaned only Pratap Singh and Adaram for offence under sec. 302, read with sec. 34 of the Indian Penal Code. As regards Budh Ram and Juglal a report under sec. 169 Criminal Procedure Code was submitted, but on a complaint, the learned Magistrate started committal proceedings against all the four accused persons and after framing a charge under sec. 202, read with sec. 34, Indian Penal Code, he sent all of them to the court of Session to stand their trial. The trial Judge after having gone through the evidence of the prosecution was of opinion that no such facts and circumstances have been brought on the record which may go to involve Adaram, Budhram and Juglal in the commission of the mur-der of Surjaram and therefore he ordered the acquittal of these three accused persons. A definite finding was however recorded by the learned judge that gun-shot injury on the neck of Surjaram was inflicted by Pratap Singh which resulted in the instantane-ous death of Surjaram and therefore he cannot escape the consequence. It was in this background that Pratap Singh alone was convicted under sec. 302, Indian Penal Code and sentenced to life imprisonment. Mr. Mulla appearing on behalf of Pratap Singh did not challenge the fact that Surjaram died of gun-shot injury sustained by him on his neck at the shop of P. W. 3 Surjeet Singh Sethi at about 11. 30 a. m. but his contention is that the news of this broad day-light gruesome murder committed in a busy locality of Bhadra town spread like a wild fire attracting the Police authorities to the scene of occurrence without even going into the formality of registering a case and it was after proceeding with the investigation that Kurdaram was summoned from his village Mehrana somewhere in the evening and then a formal first information report was registered. In the context of such a tainted investigation, Mr. Mulla argued that it will not be safe to place reliance on the testimony of the so-called two eye witnesses, namely, P. W. i Kurdaram and P. W. 4 Maduram who were highly interested because of their being active members of the party headed by Surjaram. Learned counsel in this connection pointed out certain discrepancies in the statements of the prosecution witnesses, and on that basis it was vehemently urged that the first information report, which was according to him, lodged somewhere in the evening after calling Kurdaram from Mehrana from their village must be declared to be the post investigation document which lends a particular bias to the entire investigation that vitiates even the trial of Pratap Singh. He also argued that non production of the independent witness belong to that busy locality of Bhadra where the murder was committed in a board day light gives a different complexion to the prosecution case and makes the case against the appellant very doubtful.
(3.) WE propose to deal with the infirmities in the prosecution case as pointed out by Mr. Mulla as its proper place, but before we proceed to examine the material placed by the prosecution we may dispose of the general argument of the learned counsel for the appellant about the non production of the local eye witnesses who had witnessed the occurrence in the heart of the town. In this connection we may observe here that P. W. 3 Surjeet Singh Sethi who could not deny his presence in his shop at the time of the incident was examined in this case, but the way he acquitted himself in the witness box shows that he was not prepared to discharge his role as an eye "witness to oblige the prosecution by unfolding the truth regarding the identity of the assailant of Surjaram. It appears that the people had got scared due to the bold and dashing action of the assailants in the broad day light and therefore it was not an easy task for the investigating agency to pick out such persons from the market who could have taken courage to depose against such formidable criminals who could take the life of a man in such a busy locality and that too in broad day light, especially when the accused persons were not by then apprehended and were free to take revenge against any one who could act as eye witness of this incident. It is in this background that we find no substance in the argument of Mr. Mulla that the the absence of the witnesses from that locality who must be present at or near the scene of occurrence must create a doubt about the truthfulness of the prosecution story. The prosecution has produced only two eye witnesses in this case, namely, Kurdaram (P. W 1) and Maduram (P. W. 4 ). Surjeet Singh who was undoubtedly present at his shop at the time when the assailants entered the shop and fired the shot at Surjaram has, however, very cleverly avoided to mention anything about the real assailant and took a safe stand to avoid incurring the displeasure of the dare devils by deposing that he was sleeping when the incident took place he woke up from his slumber after hearing a report of the gun fire and he saw the back of one person going out of his shop and, therefore he could not identify him. He further stated that the person who went out of his shop at that time was not known to him from before. He also stated that the person who was standing at the eastern door with a Barchhi in his hand could not be identified by him as he could not see his face. This type of evidence shows that out of fear the witness who had actually witnessed the occurrence was not prepared to oblige the investigating agency by coming out with truth. We however cannot forget that the assailants were at large at the time when Sethi P. W. 3 was interrogated by the police and therefore this type of fear naturally affected the mind of Sethi and the neighbours who could have been dealt with in the same cruel manner in which the deceased was treated by the assailants. In these circumstances it is difficult to hold that the absence of the eye witness from the locality where the crime was committed lends a different colour to the prosecution story and makes it doubtful. The first information report (Ex. P. 1) was lodged by P. W 1 Kurdaram within 20 minutes of the occurrence. The time of the report as entered therein is 11. 50 a. m. The report contains the complete description about the manner in which the incident had taken place and also the names of the persons who were responsible for committing the murder of Surjaram. Soon after taking down this report Shri Anar Singh (P. W. 10), who was incharge of the Police Station, proceeded to the place of occurrence and prepared various memos including Ex. P. 4 which is the inquest report. P. W. 3 Surjeet Singh Sethi, who had also signed this Ex. P. 4, has deposed that Kurdaram (P. W. 1) had also put his thumb impression on this document Ex. P. 4. A site plan was also drawn by P. W. 10 Anar Singh at the instance of Kurdaram and Ex. P. 5 to Ex. P. 9 were also prepared at the shop of P. W. 3 Surjeet Singh Sethi but on these documents the thumb impression of Kurdaram could not be obtained. An argument has been advanced by Mr. Mulla that the absence of thumb impression of Kurdaram on the document Exs. P 5 to P. 9 suggests that Kurdaram was not actually present at Surjeet Singh Sethi's shop when the investigation actually started and, therefore, his suggestion is that after the police somehow came to know that a day light murder had been committed by some miscreants, the police came to the scene of occurrence and started investigation even without recording the first information report and the report (Ex. P. 1) according to him, was taken down in the evening after Kurdaram was called from Mehrana This argument of Mr. Mulla cannot stand the scrutiny because we find that document Ex. P. 4 bears the thumb impression of Kurdaram and, as Kurdaram states, after putting his thumb mark on the said document he went to the bazar as he had some work in the bazar. The perusal of documents Exs. P. 4 to P. 9 clearly shows that on each document the investigating officer had put the first information report No. 64 which shows that this report had by that time come into existence before these documents Exs. P. 4 to P. 9 were prepared by him. The presence of Kurdaram at the shop of Surjeet Singh Sethi is further established from the deposition of Surjeet Singh Sethi himself who cannot be said to be a partisan witness. ;