A. K. MATHUR, J. - (1.) THIS is an appeal against the judgment of conviction by the accused appellant. The learned Additional Sessions Judge, No. 1, Hanu-mangarh vide his judgment dated 23. 12. 1980 has convicted the accused appel-lants under Section 302 read with section 149 I. P. C. and sentenced them to life imprisonment. He has also convicted all the four accused appellants under Section 450 I. P. C. and sentenced them to 7 years rigorous imprisonment and a fine of Rs. 100/- each and in default of payment of line to further undergo two months' rigorous imprisonment. Accused Appellant Sahab Singh was also convicted under Section 323 I. P. C. and sentenced to one year rigorous imprisonment. All the sentences were directed to run concurrently.
(2.) THE facts giving rise to this case are that P. W. 1 Jeet Kaur wife of deceased Dilipsingh filed a first information report at police station Sangari> a on 10. 7. 1979 at 5 A. M. It was disclosed by her in the first information report that deceased Dilipsingh and accused Mahendra Singh had a dispute regarding non-payment of Rs. 1,500/ -. On account of this monetary dispute, Mahendra Singh was given beating by her father-in-law, husband and brother-in-law. On account of this Mahendra Singh has filed a first information report Ex. P. 5 at police station, Sangariya. A challan was filed in that case, but a compromise was arrived at between both the parties. However, both the parties were not happy about this compromise. On 9. 7. 1979 at 7. 30 P. M. in the evening deceased Dilip Singh and P. W. 2 Ramsingh who is her husband's cousin brother were taking the dinner in her house at village Fatehpur. All the accused persons namely, Hukam Singh armed with a pistol, Sahabsingh armed with a gun, Charansingh armed with a 12 bore gun Mahendrasingh armed with a single barrel and Kundansingh armed with lathi came at the house and exhorted that we will have to settle the dispute of Mahendrasingh. THEreafter, they pulled Dilipsingh and dragged him towards the house of accused Mahendrasingh. Ramsingh P. W. 2 tried to prevent the accused persons from dragging him, but without any result. She also shouted for help. Her cries attracted Jhandasingh s/o Sohansingh, Sundersingh s/o Khel Singh on the scene. When Charansingh saw these persons, coming up he immediately fired a shot on the chest of the deceased with the gun. At that time, Hukam Singh, Mahendrasingh, and Kundansingh had caught hold of the deceased Dilip Singh. Soon as he was struck with the bullet he fell down and died. THE accused thereafter took to their heels. THEreafter, she left one Daulatram to look after the dead body of the deceased and she took the tractor of the Sarpanch and reached at the police station to lodge the first information report. On the basis of this first information report, a case under Sections 302, 147, 148, 149 and 452 I. P. C. was registered against the accused persons. THE police reached at the scene of occurrence and took up the investigation. THE dead body of the deceased was immediately seized and sent for post mortem. THEreafter, on the information furnished by accused Charansingh a 12 bore gun was recovered at his instance and the same was sealed. Likewise a single barrel gun was recovered at the instance of accused Sahabsingh. One more pistol which was lying at the scene was also seized. THEse articles were sent for chemical examination and the blod stained clothes were also sent to the Serologist. After close of the investigation, the police filed a challan against all the five accused persons. But during the trial accused Charansingh died. THErefore, trial proceeded against the remaining four accused persons. THE prosecution examined about 13 witnesses and got a large number of documents exhibited. THE accused denied the commission of the offence. THE case was ultimately committed to the court of Sessions. THE learned Additional Sessions Judge, vide his judgment dated 23. 12. 1980 convicted and sentenced the accused persons as aforesaid. Aggrieved against this the accused appellants preferred the present appeal before this court. We have heard learned counsel for the parties and the learned Public Prosecutor and we have also gone through the judgment as well as the record. Learned counsel for the appellant has strenuously urged that P. W. 1 Jeet Kaur wife of the deceased, P. W. 2 Ramsingh and P. W. 3 Jhandasingh are not reliable witnesses. He further submitted that no independent witness has been produced by the prosecution of that locality. He also urged that the prosecution has not given any satisfactory explanation for the late filing of the first information report. He has also pointed out that the prosecution has not examined Sundersingh who is said to be an eye-witness of the incident. Therefore, adverse inference should be drawn against the prosecution for not producing Sundersingh. Learned counsel further submitted that there is no motive. Lastly learned counsel submitted that this is a case of false and over-implication. There are three eye-witnesses, namely, P. W. 1 Jeet Kaur, PW. 2 Ramsingh and P. W. 3 Jhandasingh. P. W. 1 Jeet Kaur is the wife of the deceased. According to her testimony it transpired that when the deceased was taking his food along with one Ramsingh all the five accused persons came there and pulled him out from his house. The deceased was brought in front of the house of accused Mahendrasingh who resides in the same lane a few passage away from the house of deceased. There accused persons Hukamsingh, Mahendrasingh, and Kundansingh caught hold of the deceased and the accused Charan-singh fired a gun shot from a close range. The deceased died and thereafter all these accused persons ran away from the scene of occurrence. This incident is said to have taken place at about 7. 30 P. M. on 9. 7. 1979. Thereafter she left one Daulatram who is a village Kotwal (Chowkidar) at the scene of occurrence and borrowed the tractor of the Sarpanch Sher Mohd. P. W. 5, thereafter she along-with Ramsingh went to the police station and lodged the first information report at 5 A. M. on 10. 7. 1979. The police station is said to be 12 miles away from the scene of occurrence. Learned counsel for the appellant has strenuously urged that the testimony of this witness is of very doubtful character. He has pointed out that according to her version, deceased was dragged out but there were no marks of dragging on the person of the deceased. So far as the question of dragging is concerned, suffice it to say that even if some persons 4 to 5 pulled up one person and dragged him out from his house then it is not necessary that in each and every case the dragging marks will appear on the body of the victim. In the present case, there are five accused persons, they pulled up the deceased and took him out from his house. This mode of lifting or dragging may not necessarily lead to any bruises or dragging marks on the body of the deceased. Learned counsel next submitted that case of the prosecution is that three persons caught hold of the deceased and the fourth fired a shot on exhortation. This is quite unnatural conduct. Learned counsel submits that it is very dangerous when co-accused are just nearby holding the victim. It is not possible that the fourth person will fire on the victim and endangering other co-accused person. This argument of the learned counsel for the appellant does not appeal to us for the simple reason that the manner in which the victim has been killed does not expose the other co-accused persons. According to the medical testimony the deceased is said to have received a gun shot wound in his chest and according to Dr. Bhimsingh P. W. 11, who has conducted the post mortem, the deceased has received a gun shot wound-entry wound an oval shape wound 1/2" x 1 with inverted margins deep to the thoracic cavity with blackening and tattooing present and above medially and downwards direction in the Vth inter coastal space of left side. There is another wound of circular shaped wound 1/2" x 1/2" conceding the entry wound with everted margins at the inferior scapular region of left side. The third injury is of circular shaped wound 1/2" x 1/2" conceding with the entry wound with everted margins at the left inferior scapular region. That shows that the fire arm appears to have been used from a very close range as a result of which there was tattooing, burning signs, this appears that the fire arm was used from a very short range, not more than 4 to 5 feet. This leaves out the possibility of endangering the life of other co-accused persons who had caught hold of the victim. In the present case, the victim was paralysed as the accused persons had caught hold of him by his both hands and kept him in a straight position leaving the assailant free to take a shot. The assailant, according to the injuries received by the victim, appears to have been fired from close range i. e. 4 to 5 feets. Thus, the testimony of this witness stands sufficiently corroborated by the medical evidence. The argument of the learned counsel for the appellant that the accused will not risk exposing other co-accused, does not appear to be tenable. Learned counsel has also emphasised that Jeet Kaur has stated that she left the place and sought the help of P. W. 7 Daulatram and left him on the scene so as to guard the dead body. But P. W. 7 Daulatram has deposed that he was informed about this incident by Mst. Rani wife of P. W. 2 Ram Singh who was sent by the wife of the deceased i. e. Jeet Kaur. He has further deposed that when he was going to the place of occurrence he saw that accused Mahendrasingh was coming out from his house. He has also deposed that thereafter he laid down the cot and sat near the dead body in front of the house of Mahendrasingh to guard the same. Learned counsel wanted to discredit the testimony of Jeet Kaur by reference to the testimony of P. W. 7 Daulatram that according to the testimony of Jeet Kaur she went to the house of Daulatram. As against this Daulatram P. W. 7 has deposed that he was informed about the incident by Mst. Rani wife of Ramsingh. This appears to be a minor omission. But the fact remains that in the first information report it was mentioned by Jeet Kaur that she has already left Daulatram to guard the dead body of the deceased. It is of little consequence that whether Daulatram has reached at the scene to guard the body of the deceased on account of the personal request of Jeet Kaur or he has reached on the scene of occurrence on being summoned by Jeet Kaur through Mst. Rani wife of Ramsingh. Similarly, learned counsel for the appellant has tried to point out that Sher Mohd. , who is the Sarpanch of the village and who was also approached by Jeet Kaur for assistance has given his tractor for going to the police station. It has been urged that P. W. 5 Sher Mohd. also did not say that whether Jeet Kaur met her or not. No question was asked to this witness and he has only proved the recoveries and site inspection made by the police from the scene. Thus, non -mentioning of the fact by Sher Mohd. that he provided Jeet Kaur with his tractor for going to the police station does not render the testimony of Jeet Kaur as untruthful.
(3.) NEXT is the testimony of P. W. 2 Ramsingh, the other eye-witness. It has been pointed out that this witness was not prevent at the scene of occurrence and he has no occasion to be at the scene of occurrence and he has no occasion to be at the scene of occurrence and to witness the incident. P. W. 2 Ramsingh has deposed that he and deceased Dilipsingh first had their bath at the canal and thereafter came to the house of the deceased. Ramsingh is a distant relation of the deceased. Therefore his going to the house of the deceased and taking food in the evening with the deceased cannot be said to be unusual. It is also argued by the learned counsel that he is a tutored witness, as he did not help Mst. Jeet Kaur in any manner. It is wrong to say that this witness did not assist Jeet Kaur. On the contrary, he has deposed that he accompanied Jeet Kaur to the house of Sarpanch from there the tractor was taken and then they were taken to the police station. Thus, Ramsingh P. W. 2 did help Jeet Kaur in enabling her to go to the house of Sarpanch Sher Mohd and from there they went to the police station. P. W. 2 Ramsingh has also deposed that he has received injuries from the butt of the gun and his injuries were also examined. Thus, the presence of Ramsingh at the scene of occurrence cannot be doubted. Learned counsel has also urged that in fact Ramsingh has unnecessarily involved Sahabsingh that he exhorted the accused persons that rescuer of deceased Dilipsingh has come therefore shot him immediately. But since the testimony of Ramsingh appears to be reliable one and it corroborates the version given out by Jeet Kaur he cannot be treated as unreliable. Next is the testimony of P. W. 3 Jhandasingh. Learned counsel for the appellant has pointed out that he is a person against whom a large number of criminal cases are pending and he is involved in a number of criminal cases. Be as it may, what we have to see is that whether this witness was present at the scene of occurrence or not. P. W. 3 Jhandasingh has supported the version of P. W. 1 Jeet Kaur and P. W. 2 Ramsingh. Simply because that he had a bad record, his testimony cannot be rejected out right. On the contrary this person also accompanied Jeet Kaur and he has also deposed that they went to the house of the Sarpanch and from there they took the tractor, which was driven by his driver. He has further deposed that they were also accompanied by Sundersingh. However, Sundersingh has not been examined by the prosecution. But by and large the version given by these witnesses i. e. P. W. 1 Jeet Kaur and P. W. 2 Ramsingh stands sufficiently corroborated from the testimony of this third eyewitness. Next comes the delay in filing the first information report. It is true that the incident took place on 9. 7. 1979 at 7. 30 P. M. and the first information report was lodged on 10. 7. 1979 at 5 A. M. by Jeet Kaur. It is true that the first information report in the present case is belated but that will not have any adverse effect on the prosecution story. The fact is that Jeet Kaur was sufficiently terrorised and she had to approach the Sarpanch and thereafter borrow the tractor and then went to the police station for filing the first information report at police station Sangariya, which is 12 miles away from the place of occurrence. Such delay in view of the three reliable eye-witnesses cannot be proved fatal to the prosecution. ;