S. S. BYAS, J. - (1.) BY his judgment dated January 7, 1985 the learned Sessions Judge, Sri Ganganagar convicted accused Shersingh Gurjantsingh, Darshan Singh and Mahendra Singh under section 302/34, I. P. C. and sentenced each of them to imprisonment for life and a fine of Rs. 200/, in default of the payment of fine to further undergo six months' rigorous imprisonment. BY the same judgment, accused Shersingh was further convicted under section 302, I. P. C. and under section 27 of the Arms Act and was sentenced to imprisonment for life with a fine of Rs. 200/- and one year's rigorous imprisonment respectively on these two counts.
(2.) THE incident is alleged to have taken place at about 9. 00 p. m. on September 20, 1983 in village Sunderpura P. S. Sadulsahar district Sri Ganganagar, in which two persons Gendasingh (aged about 65 years) and his son Kashmirsingh (aged about 35 years) were put to death by the accused with gun and the Gandasies. Kashmirsingh was the Sarpanch of the Gram Panchayat. The accused arc also residents of village Sunderpura. Accused Gurjant Singh is the son of accused Shersingh while the remaining two Darshansingh and Mahendrasingh are said to be their close associates. There was close relationship between the deceased-victims and the accused Shersingh and Gurjantsingh. The father of accused Shersingh was the real brother of the father of the deceased-victim Gendasingh. Shersingh and Gendasingh were, thus, the first cousins. PW 3 Sukhjeet Kaur is the widow of the deceased Kashmirsingh while pw 4 Kala-singh is the domestic servant of their family. Their houses are situate in the same street of the village as shown in site plan Ex. P. There is only one house in between the houses of the deceased-victims and the accused Shersingh. There are two gates in the house of accused Shersingh, one facing the East and the other facing the South. The Southern gate, shown by mark 'c' in site plan Ex. P 4, is smaller than the Eastern gate. There is no dispute between the parties as regards these facts. 4. Stated in succinct, the prosecution case is that at about 8. 00 p. m. on September 19, 1983,, the deceased Kashmirsingh told his wife Mst. Sukhjeet Kaur (PW 3) that a scuffle and an exchange of abuses had taken place between him and accused Gurjantsingh on that day. His father Gendasingh was not there in the village. He had gone to village Bahama Tehsil Muktsar in Punjab. It is alleged that due to this scuffle, Kashmirsingh became apprehensive and he sent PW 6 Jeetsingh to Bahama to bring his father Gendasingh to Sunderpura. Jeetsingh went to village Bahama and brought Gendasingh with him to village Sunderpura. Kashmirsingh apprised his father Gendasingh of his scuffle with accused Gurjant Singh. Gendasingh told him that he would go to Gurjant Singh's father Shersingh to lodge protest and reprimand him. Gendasingh thereafter had a bath, took his meals and left his house to go to accused Shersingh. It was 8. 40 p. m. by then. A little while later, Sukhjeet Kaur, her husband Kashmirsingh and their servant Kalasingh heard some noise in the side of the small gate of accused Shersingh's house. These three persons rushed to that side and found Gendasingh standing in the mid of the street running out-side the Southern gate of the house of accused Shersingh. The four accused Shersingh, Gurjantsingh, Mahendra Singh and Darshansingh were also standing there. Accused Shersingh had a gun with him while the remaining three had Gandasies with them. Gendasingh told accused Shersingh to treat his son Kashmirsingh as his own son. Accused Shersingh there upon told Gendasingh to come near (Ude Aao ). Gendasingh and Kashmirsingh went towards the accused. Accused Shersingh fired his gun at Kashmirsingh, which hit him on the back in the left scapular region. Kashmirsingh fell down. Accused Gurjantsingh and Mahendrasingh started landing blows to Gendasingh with their Gandasies. Gendasingh also fell down. Accused Darshansingh struck blows to Kashmirsingh with his Gandasi. Mst. Sukhjeet Kaur raised cries. Accused Shersingh threatened her that in case she advanced further, she would also be shot dead. Accused Shersingh also cried aloud that who ever in the village dared to come out of his house would also be blown out. There was profuse bleeding from the wounds of the two victims Kashmirsingh and Gendasingh and the soil became drenched with the blood of their wounds. The accused retreated in the house of accused Shersingh. After the accused had retired, Sukhjeet Kaur went to Gendasingh and Kashmirsingh and found that they were already dead. She and Kalasingh came to her house. She sent Kalasingh to bring PW 5 Ramsingh, who was a Member of the Gram Panchayat. Ramsingh came to her house. She apprised him of the incident and requested him to accompany her to go to the Police Station. Ramsingh declined to accompany her as he got frightened. Early in the next morning, Sukhjeet Kaur managed a jeep-car from Balbirsingh and went to Police Station, Sadulsahar. She also took Kalasingh with her. She reached the police station, Sadulsahar at about 7. 00 a. m. on September 21, 1983 and verbally lodged report Ex. P. 3 of the occurrence. The police registered a case and the investigation ensued. The investigation was conducted by the Station House Officer Mr. Jeevan Ram (PW 7 ). He recorded the statements of Sukhjeet Kaur and Kalasingh. Thereafter he took with him Dr. Kailash Nayak (PW 1)-the then Medical Officer Incharge, Primary Health Centre, Sadulsahar and arrived at the site of occurrence at about 10. 00 a. m. He inspected the site and prepared the site plan Ex. P4 and the site inspection note Ex. P. 4-A. He found the dead bodies of the two victims lying in the street, just out-side the houses of accused Shersingh and Gurjantsingh. He prepared the inquest reports of the dead-bodies. He also lifted the blood-stained soil from the place of occurrence and sealed it. He found some broken pieces of Gandali lying near the dead-body of Gendasingh. These broken pieces were also seized and sealed. The medico-legal autopsy of the victims' dead-bodies were conducted on the spot by Dr. Kailash Nayak at about 1. 00 p. m. on the same day. He noticed the following injuries on the dead body of Gendasingh:- External 1. There was an incised wound of 15 c. m. x 4 c. m. deep to cranial cavity present on left temporal (part-of-) frontal region, preauricular region and left mandible) underlying bones were fractured in many pieces. Brain matter alongwith its membranes were severally damaged and huge amount of blood and brain matter coming out. 2. There was incised wound of 15 c. m. x 3 1/2 c. m. deep to cranial cavity present on left parietal (part of temporal region, mastoid region, left pinna) underlying bones were fractured in many pieces, brain matter and membranes were severely damaged. 3. There was incised wound of 9 c. m. x 3 c. m. deep to cranial cavity present in post auricular region extending upto occipital bone underlying bones were fractured and brain matter alongwith its membranes severely damaged. 4. There was crushed lacerated wound of 22 c. m. x 18 c. m. (involving left supraclavicular region, mammary region, infromammary region, upper part of upper arm, exillary region, scapular region, posteriorly, shoulder joint ). There was dislocation of left shoulder joint and fracture of humorous bone on left side muscles and blood vessels were severely damaged. 5. There was incised wound of 7 c. m. x 3 c. m. deep to muscle in interscapular region posteriorly more on left side. 6. There was incised wound of 4 c. m. x 2 c. m. deep to subcutanous tissue on left side of neck. 7. There was incised wound of 3 c. m. x 2 c. m. deep to subcutanous tissue on neck just above the cervical spine posteriorly. 8. There was incised wound of 5 c. m. x 1 c. m, deep to muscle right wrist. 9. There was incised wound of 2 c. m. x 1/2 c. m. deep to subcutanous tissue on left side of nose. Internal 1. Left temporal, occipital, frontal and parietal bones were found fractured. 2. Left humerous and left mandible bones were found fractured. All the injuries were ante-mortem caused by some sharp-edged weapons. The doctor was of the opinion that the cause of death, of Gendasingh was due to severe injury to brain. The post-mortem examination report prepared by him is Ex. P 1.
(3.) THE doctor found the following injuries on the bead body of Kashmir-Singh.- 1. Firearm wounds THEre were found wounds of entrance each of 1/2" in diameter lying near to each other circular, lacerated with inverted edges present in left scapular region posteriorly each running upwards forward, medially damaging left lung with pleura pericardium and heart, underlying bones, ribs were fractured. Thoracic cavity full of clotted and semi-clotted blood. Heart and left lung pleura, pericardium were badly damaged, and a pallet recovered from thoracic cavity during post-mortem. THEre was no blackening and tattooing over the entry wounds. 2. Firearm wound (exit)THEre was lacerated wound 10x6 c. m. with irregular everted margins which were ragged to its edges involving injury on clavicular mammary region on left side of chest conteriorly underlying bones were fractured, pleura on left side Jungs, pericardium heart were lacerated severely, underlying bones were fractured left sided thoracic vessels muscles were also damaged. Thoracic cavity was full of blood, which was clotted and semi - clotted. 3. Incised wound 14 c. m. x 2 cm deep to muscles present on auricular region involving part of pinna, temporal region, part of frontal region on left side. 4. Incised wound 10 c. m. x 1/2 c. m. deep to subcutaneous tissue present over interscapular region posteriorly. Internal 1. Ribs No. 2 to 7 and left scapular bones were found fractured. THE doctor also found a pallet lodged in the thoracic cavity. He took it out and sealed it. THE injuries found on the dead body of Kashmirsingh were ante mortem. Injuries No. 1 and 2 were caused by some firearm while injuries No. 3 and 4 were caused by some sharp - edged weapon. Injury No. 1 was stated to be the entry wound while injury No. 2 was stated to be the exit wound caused by the gun-shot. THE doctor was of the opinion that the cause of death of Kashmirsingh was haemorrhage and shock as a result of severe injury (fire-arm) to heart and lung. THE post-mortem examination report prepared by him is EX. P2. THE blood stained clothes of the deceased-victims, including the shirt (Article 4) of Kashmirsingh, were seized and sealed. THE accused persons were arrested on September 24, 1983. In consequence of the information furnished by accused Shersingh one 12 bore D. B. B. L. gun (Article 10)' an empty cartridge case and the gun - licence were recovered. In consequence of the information furnished by accused Gurjantsingh, Mahendrasingh and Darshansingh. Gandasies (Article 1,2 and 3) and their wearing clothes were recovered. THE recovered articles were sent to the State Forensic Science Laboratory, Jaipur for examination. THE reports received from there are EX. P. 31 and EX. P. 32. On the completion of investigation the police presented a challan against the appellants in the court of Munsif cum Judicial Magistrate, Shri Ganganagar, who, in his turn, committed the case for trial to the Court of Sessions. THE learned Sessions Judge framed charges under section 302/34, I. P. C. against all of them. Charges under section 302 I. P. C. and section 27 of the Arms Act were also framed against accused Shersingh. THE accused pleaded not guilty and claimed to be tried. THEy denounced the whole prosecution story as a false and fabricated piece of concoction and claimed absolute innocence. In support of its case the prosecution examined ten witnesses and filed some documents. C. W. 1 Mr. P. S. Manocha the Assistant Director (Ballistic) State Forensic Laboratory, Jaipur was examined as a court witness. No evidence adduced in defence. On the conclusion of the trial, the learned Sessions Judge, found the charges duly proved against the accused persons. THEy were consequently convicted and sentenced, as mentioned at the very out-set. Aggrieved, the accused have come - up in appeal to challenge their conviction. We have heard Mr. A. N. Mulla the Senior Advocate and Mr. M. L. Garg on behalf of the appellants, the learned Public Prosecutor for the State and Mr. Sardar Karnelsingh for the complainant. Before dealing with the contention raised at the Bar, it would be useful to first notice the findings recorded by the trial court on vital issues. They are as under: 1. the First Information Report Ex. P. 3 is a post investigation and medico oriented document. 2. the opinion of PW 1 Dr. Nayak, who conducted the medico-legal autopsy, that injury No, 1 of the deceased Kashmirsingh was the entry wound and injury No. 2 was the exit wound of the gun - shot is erroneous in view of the evidence of the Ballistic Expert Mr. Manocha (CW 1 ). The ballistic evidence is quite contrary. It is that the injury No. 2 was the entry wound and injury No. 3 was the exit wound of the gun-shot. 3. the two eye witnesses PW 3 Mst Sukhjeet Kaur and PW 4 Kalasingh had not seen the actual incident. Their claim to have seen the appellants firing the gun and landing blows to the victims by Gandasies is totally false. 4. the two eye witnesses had only seen the appellants retreating with their weapons to the house of accused Shersingh through the small gate shown by mark 'c' in site plan EX. P. 4. 5. the appellants were not traceable after the incident and could be arrested only on September 24, 1983. They remained absconding during this interval; and 6. the recovery of the gun and the Gandasies, and the Forensic Science Laboratory report Ex. P. 31 have no evidentiary value. ;