M.C.JAIN, J. - (1.) THE Additional Sessions Judge, Hanumangarh, by his judgment dated 7.5.1976, convicted the appellant Meghsingh of the offence under Sections 302 and 323, Indian Penal Code, and Section 27, Arms Act, and the appellant Chet Singh of the offences under Sections 302/34 and 32.1, Indian Penal Code, and Section 27, Arms Act. Both the appellants were sentenced to imprisonment for life under Section 302 and 302/34, Indian Penal Code, respectively, and were sentenced to a fine of Rs. 250/ - each, in default, to undergo three months rigorous imprisonment. For the offence under Section 323, Indian Penal Code, they were sentenced to one year's rigorous imprisonment and under Section 27, Arms Act, both were sentenced to two years' rigorous imprisonment each. The third accused Fatehsingh was acquitted of the offence under Sections 302, 322 and 343 read with Section 109, Indian Penal Code. The appellants were also acquitted of the offences under Sections 447 and 342, India Penal Code and Section 25, Arms Act.
(2.) THE field of the appellants adjoins the field of Jangirsingh (P.W. 3). On 8.7.1974 at about 4.00 p.m. Nihal Kaur (P.W. 2), wife of Jangirsingh, was engaged in removing the weeds. It is alleged that the appellants came near to her and caught hold of her and dragged her. Both of them snatched the Kasi from her hands and started beating her. Atmasingh (P.W. 1) and the deceased Jalawarsingh were in their, field, which is on the other side of the field of Jangirsingh. It is said that the accused, Fatehsingh exhorted to drag Mst. Nihal Kaur to their Dhani. Thereupon Jalawarsingh raised shouts for releasing her. When Jalawarsingh was advancing. Fatehsingh exhorted to shoot Jalawarsingh down. After releasing NihaI Kaur, it is alleged that the accused Meghsingh fired a shot from his gun from point No.4 shown in the site plan Ex. P -2. When Jalawarsingh had come a by, little ahead from Jangirsingh Jhhuggi, Jangir the Singh asked him not to proceed ahead, as the accused persons are armed with guns. Thereupon, Jalawarsingh retreated. While he was retreating, the accused Meghsingh fired a shot, which hit Jalawarsingh on his back. After covering some distance, which is said to be 35 ft., as stated in Ex.P -2/A, site notes, Jalawarsingh fell down. Thereafter the accused Chetsinghalso fired a shot form the gun in his possession which did not hit any body. Jalawarsingh was the brother of Atmasingh (P.W. 1); who, according to the prosecution, witnessed the entire occurrence. The accused persons then went away from the place of occurrence. Jalawarsingh succumbed to the injury. A cot was brought from nearby Jhhugi and the dead body of Jalawarsingh was placed on the cot and the cot was removed to the Jhhugi of Jangirsingh. Atmasingh then went to lodge the report at the Police Station, Lakhuwali. As he could not get the bus, he walked down 13 miles distance and the report was lodged at about 10.30 p.m. the same day. On his report case under Sections 302, 342, 323/34, Indian Penal Code was registered by the S.H.O. Shri Jaibhagwan (P. W. 6). The S.H.O. visited the site and prepared the siteplan, site notes, Fard Suratha Lash and inquest report and he also conducted further spot investigation. The autopsy was got conducted from Dr. Gangaram (P.W. 4). Dr. Gangaram recovered lead shot from the body of the deceased and sent the same in a sealed bottle to the S.H.O. vide Ex. P -8. Nihal Kaur was also got medically examined by the some medical officer on 6.7.1974. The accused persons were arrested. On the information Ex. P -12 of the accused Chetsingh dated 8 -7 -1974, and at his instance a rifle was recovered vide recovery memo Ex. P -11. Chetsingh also gave information in respect of one Kasi, which is Ex. P -14, and got the same recovered vide Ex. P -15. The accused Meghsingh gave information in respect of' his 12 bore gun Ex. P -13 and got the same recovered vide recovery memo Ex. P -I0, on 8.7.1974. Along with the guns some cartridges cases were also recovered. The SBBL 12 bore country made gun and one 12 bore cartridge case and the country made 303 gun with three cartridge cases, were sent to the State Forensic Science Laboratory for examination. The report of the State Forensic Science Laboratory is Ex. P -20, according to which both the fire arms were in working order. After completion of investigation, charge -sheet was presented against the three accused persons, who were ultimately tried by the Additional Sessions Judge, Hanumangarh. The accused persons were charged of the various offences, to which they pleaded not guilty and claimed to be tried. The prosecution examined seven witnesses. The statements of the accused persons were recovered. The accused Meghsingh stated that they have been cultivating the land for the last four years and the Girdawaris of four years are in their names. Jalawarsingh and others wanted to grab the land, for which he instituted a suit and obtained an injunction orders. The suit filed by Jangirsingh was dismissed. He further stated that Jalawarsingh, Jangirsingh and Devasingh conspired and sent Nihal Kaur to their field. Nihal Kaur was having a Kasia. She started uprooting cotton plants. He went there and prevented her. Thereupon, she hurled abuses. He was having a Danda with him. He inflicted a Danda blow on her. He was not armed with a gun. On infliction of blow, Nihal Kaur raised alarm. Thereupon Jangirsingh, Jalawarsingh and Devasingh came running from a distance of about 5 Kilas. Jalawarsingh was ahead of them. From behind. Jangirsingh fired, which hit Jalawarsingh. Thereafter he rushed to his Dhani. According to him, Atmasingh was not there on the spot and his brother Chetsingh and father Fateh Singh were at the village Rasuwala. The accused Chetsingh pleaded slibi. The accused persons examined one Shyam Narain Sharma in their defence as D.W. 1. The learned Additional Sessions Judge, after hearing arguments convicted and sentenced the accused -appellants, as aforesaid and acquitted Fatehsingh. The learned Additional Sessions Judge believed the statement of Atmasingh in part, only to this extent that he was present at the spot and he had heard the gun shot reports and had seen Jahwarsingh failing on the ground as a result of shot having been effective on him. According to the learned Additional Sessions Judge. Atmasingh was at a distance of about 825 ft. and from such a distance he could not have seen the accused firing and so also he could not have seen the appellants inflicting blows with Kasia on Nihal Kaur, nor he could hear the alleged exhortation on the part of Fatehsingh. The learned Additional Sessions Judge, however, relying on the testimony of Nihal Kaur and Jahgirsingh believed the prosecution case and on that basis convicted the appellants for the offences, as stated above. We have heard Shri K. C. Gaur, assisted by Shri Niranjan Gaur, learned counsel for the appellants, and Shri M. C. Bhati learned Public Prosecutor, for the State.
(3.) THE prosecution, in this case, primarily relied the testimony of Nihal Kaur and Jangirsingh, corroborated partly by the testimony of Atmasingh and further corroborated by medical evidence and the recovery of fire arms from the possession of the appellants. Nihal Kaur and Jangirsingh are the most material witnesses in this case. At the time of occurrence. Nihal Kaur was first assaulted by the accused persons. She had sustained the following injuries on her person: (1) Bruise 7 cm x 3 cm horizontal on right side back of chest in the region of 8th, 9th ribs posteriorly. (2) Bruises 3 cm x 1 cm, 2 cm x 1 cm, 1 cm x 1 cm on the right buttock upper part. (3) Bruise 5 cm x 4 cm on right side of vertebral column at the level of 11th, 12th thoracic vertebrae. According to her, when she was removing the weeds, both the appellants came hear to her and snatched the Kasi from her hands and inflicted blows with that Kasi. She was also dragged from the place, where she was working in the field. It was on her alarm that her husband Jangirsingh, Dewasingh, as well as the deceased Jalawarsingh were attracted. The presence of Nihal Kaur and Jangirsingh at the scene of occurrence, cannot be doubted. From their statements it is clear that both of them were working in their field. It was the month of July. In the month of July, the presence of cultivators in their respective fields is natural. As regards the presence of witness Atmasingh, we agree with the finding of the learned Additional Sessions Judge that he was also present in his field along with the deceased Jalawarsingh. Both the witnesses, namely, Nihal Kaur and Jangirsingh, have stated that Atma Singh was present at the time of occurrence at the field and it was Atmasingh, who went to lodge the report after the occurrence. The main question in the case is as to whether the witnesses had seen the accused persons firing and whether the occurrence took place in the manner as stated by them or it took place in the manner as stated by the accused Megh Singh in his statement. The sequence of events establishes beyond doubt that the occurrence took place in the manner as stated by the prosecution and not in the manner as stated by accused Meghsingh. The injuries on the person of Nihal Kaur are pointer and indicator of the manner of occurrence, as well. When she was be labomed, it was natural for her to raise alarm and when such an alarm was raised by her, it was natural for the witnesses to have attracted to that alarm and it is in that sequence that the Jalawarsingh had come to rescue Nihal Kaur, when she was dragged by the appellants towards their field. It may be stated that according to the statement of Jangirsingh, he was first busy in the work, he was engaged. It was only when the alarm was raised by Nihal Kaur, that he saw that his wife is being dragged by the appellants. According to Jhangirsingh, Jalawarsingh also asked him to accompany him, when he was proceeding in the direction towards the accused persons. When he was so asked, he told him not to proceed ahead as both the accused persons are armed with guns. Seeing Jalawarsingh proceeding ahead in order to rescue Nihal Kaur, it appears, as stated by the witnesses, that the accused Meghsingh fired his gun from point No. F followed by the accused Chetsingh. To us, it appears that on seeing Meghsingh aiming the gun, Jalawarsingh retreated and while he was retreating, the first shot hit him, as a result whereof, after covering some distance, he fell down and it is at that stage, as per the statements of the witnesses Nihal Kaur and Jangirsingh, second shot was fired by the accused Chetsingh. Jangirsingh clearly stated that the accused Meghsingh fired the shot from near the heap of cotton sticks standing in a pit. So far as the version given by the accused Meghsingh, is concerned we may state that the version given by him, appears to be palpably wrong and false. In this connection, the learned Additional Sessions Judge has assigned cogent reasons for discarding the defence version. Firstly, it is not established that Jangirsingh was at all armed with any gun at the time of occurrence. Besides that, there is no evidence on record on the basis of which it can be said that at the time of the shot being effective on Jalawarsingh, he was in the same direction, in which the accused Meghsingh was. If Jangirsingh would have aimed at the accused persons, it is inconceivable that such a shot would have been effective on Jalawarsingh. Besides that, if the occurrence had taken place in the manner, as stated by Meghsingh, his conduct would have been proceeded to the Police Station and lodged the report. If Jalawarsingh would have been hit by the shot of Jangirsingh there was no reason for Atmasingh to have concealed the role of Jangirsingh and report would have been directed against him. Another reason, which falsifies the defence version, as stated by the learned Additional Sessions Judge, is that if Jangirsingh fire would have been effective on Jalawarsingh, then only one shot would not have been effective, rather, word pollets would have been effectives, as the deceased was only at a distance of 40 ft. from Jangirsingh at that time. So viewed from all angles, the defence version appears to be far from truth. We need not enter into the controversy as to whether Atmasingh had witnessed the whole of the occurrence, as stated by him. Looking to the distance between him and the accused persons, we think that the learned Additional Sessions Judge was justified in not placing reliance on the testimony of Atmasingh as regards actual observation of firing by the appellants and the occurrence relating to Mst. Nihal Kaur. The testimony of Atmasingh as well as of the other two witnesses, has been assailed on the ground that none of them proceeded to inform any one in the village. Their conduct, thus; is an abnormal conduct. All the three witnesses are interested and partisan witnesses as well as inimical witnesses and no independent corroboration is forth coming, so reliance should not be placed on the testimony of such witnesses. On behalf of the appellants it has been pointed out that the relations between the parties were strained, litigation was going on as is evident from Ex. D/2A F.I.R. dated 11.6.1974 lodged by Fatehsingh against Atma Singh, Jalawarsingh, Jangirsingh and four others for the offence under sections 447 and 147, I P.C., and Ex. D/3 is the order of the Assistant Collector, Ganganagar, dated 3rd June, 1974, which shows temporary injunction, was issued against Jangirsingh in the suit for injunction filed by Chetsingh. ;