JUDGMENT
Rajendra Saxena, J.
1. These appeals have been preferred against the judgment dated 18.1.1989 passed by the learned Additional Sessions Judge No. 2, Sri Ganganagar, whereby he convicted and sentenced the appellants as under:
Name of the Offences Sentences
appellants
1. Gurdeep Singh Under Sections Under Section 459 IPC 5 years'
459, 307 and R.I. and a fine of Rs. 200/-;
302 IPC indefault 6 month R.I.
2. Smt. Chandra Kaur Under Sections Under Sections 307, 307/34 IPC 6
459, 307/34, years' R.I. and a fine of Rs. 300/-
302/34 IPC indefault 8 months' R.I. Under
Sections 302, 302/34 IPC life
imprisonment a fine of Rs. 200/-
indefault 2 years' R.I.
3. Dhanna Singh Under Section. Life imprisonment and a fine of
302 read with Rs. 200/- indefault R.I. for 2
109 I.P.C. years.
4. Udai
5. Talla Singh
6. Shamshersingh
2. Since aforementioned appeals arise out of the same judgment, those are being decided by a common judgment.
3. Now briefly the factual matrix: Appellant Gurdeep Singh is the husband of appellant Chandra Kaur. Appellant Dhanna Singh on the day of alleged incident was Up-Pradhan, Panchayat Samiti, Sardul Shahar. Appellants Udai Singh and Talla Singh are real brothers. Udai Singh is Ex. Pradhan of Panchayat Samiti, Sardul Shahar. Appellant Shamsher Singh is the real brother of P.W. 6 Avtar Singh, the father of deceased Bhupendra Singh. It is alleged that Plot no. 144 in Sector 2 situated in mandi Sardul shahar initially belonged to one Smt. Ramkali Nurse. On that plot, one Babu Singh raised some construction. He died leaving his daughter Smt. Pritam Kaur w/o Surjeet Singh. It is further alleged that on the half portion of the said plot, appellant Gurdeep Singh got unauthorised possession at the behest of appellant Dhanna Singh, Smt. Ramkali and Surjeet Singh sold that plot to P.W. 6 Avtar Singh and executed an agreement dated 24.10.83. The eastern portion of that plot was in possession of deceased Bhupendra Singh. It is the case of the prosecution, that appellants Gurdeep Singh and Smt. Chandra Kaur bore enmity with Bhupendra Singh over the possession of the said plot. On 9.3.84, P.W. 1 Smt. Jasmail Kaur, the mother of the deceased alongwith Krishan came from her Chak to Mandi Sardul Shahar to make some purchases, that at about 3 p.m. when they reached near the residential house (Plot No. 144) of Bhupendra Singh, they saw the latter running out therefrom and his left hand was bleeding and that appellant Gurdeep Singh armed with a sword and appellant Smt. Chandra Kaur, having a ‘Gandasi’ were running after him. It is alleged that Gurdeep Singh inflicted sword Wows on the head of Bhupendra Singh, who fell down near the house of Sheopat Kumar, that at that time appellant Smt. Chandra Kaur was exhorting her husband to finish off the enemy, that when P.W. 1 Smt. Jasmail Kaur came toward the deceased, appellant Chandra Kaur told her that she would also be finished. Thereafter appellants Gurdeep Singh and Chandra Kaur ran away. It is the case of the prosecution that Smt. Jasmail Kaur went inside the house of the deceased, where she found P.W. 2 Mangat Ram lying injured, his left jaw was severely cut and profusely bleeding. Mangat Ram informed her that he alongwith the deceased were sitting in the room, that all of a sudden appellants Gurdeep Singh and Smt. Chandra Kaur, who were armed with sword and ‘Gandasi’ respectively, came there, that Gurdeep Singh dealt a sword blow causing injuries on his left “Kanpati”, that Gurdeep Singh gave a second blow on Bhupendra Singh, who awarded off the same by raising his right hand and sustained injuries and that thereafter deceased ran away from his house and those appellants chased him. It is also the case of the prosecution that P.W. 3 Jagsir Singh, who is the brother-in-law (Sala) of the deceased and whose office was situated nearby, after hearing about the incident came there within few minutes. P.W.I Smt. Jasmail Kaur leaving Jagsir Singh to look after the dead body of Bhupendra Singh rushed to Police Station, Sardul Shahar, which is situated at a distance about one kilometer. She lodged an oral report about the incident to P.W. 10 Prithvi Singh S.H.O. at 3.30 p.m., who drew the F.I.R. Ex. P. 1. Prithvi Singh immediately reached the spot and found the dead body of Bhupendra Singh lying near the house of Sheopat Kumhar. He inspected the sites of both the incidents and prepared site plan Ex. P. 2 and memo thereof Ex. P. 2A. He also prepared autopsy report Ex.P. 4 of the deceased and memo of the dead body Ex. P. 5, He seized and sealed the turban (Pagree) of the deceased Article 4, which was stained with drops of blood and lying about 12 ft. away from the dead body vide seizure memo Ex.P. 6. He also lifted the samples of blood stained soil and controlled sample from the place, where the dead body was lying and also from the room, where injured Mangat Ram was lying vide seizure memos Ex.P. 9 and Ex.P. 10 respectively. Prithvi Singh also found that inside the room a cot and a portion of the door of that room were blood stained. He, therefore, seized and sealed the blood stained piece of the cot Article 10 and the blood stained piece of door Article 9 vide seizure memo Ex.P. 11.
4. Injured Mangat Ram was immediately taken to the Primary Helth Center, Sardul Shahar. On police requisition, P.W. 4 Dr. Kailash Chand examined him on the same day at 3.40 p.m. and found an incised wound with bleeding 7″x11/2″ x bone deep on the left upper lip, left side of the face, lower part of pinna and part of post auricular region of Mangat Ram, who was bleeding profusely. First aid was given to him and M.L.R. Ex.P. 20 was prepared. Since his condition was serious, the doctor referred him to Government Hospital, Ganganagar for X-ray examination, surgical consultation and immediate treatment.
5. P.W. 2 Mangat Ram was admitted in the Government Hospital, Sri Ganganagar. He was examined by Dr. R.P. Gupta, Medical Jurist on 9.3.84 at 6.10 p.m. The doctor stiched incised wound 6 1/2″ x muscle deep on the left ear of Mangat Ram, which was extending upto his lips. His mandible was fractured. The doctor prepared the M.L.R. Ex.P. 31. On 14.3.84, he was radiologicalyl examined by P.W. 8 Dr. K.N. Markandey, who vide his X-Ray report Ex.P. 32, confirmed the facture of his left mandible.
6. On the police requisition, Ex.P. 21, which was received in the P.H.C., Sardul Shahandr on 9.3.84 at 4.30 p.m., Dr. Kailash Chand reached the place of occurrence and conducted the medico legal autopsy of deceased Bhupendra Singh on the same day at 4.40 p.m. The dead body was identified by P.W. 6 Avtar Singh, the father of the deceased, who had reached there by that time. Dr. Kailash Chand found the following injuries:
(i) incised cut wound 14″ x 4″ x 41/2″ cutting frontal, temporal, parietal, occipital regions on the right side and underlying bones and dividing the brain partially in two halves. The brain matter alongwith its membranes was severely damaged. Huge amount of blood and brain matter were coming out;
(ii) incised cut wound 6″ x 1/2″ x deep to brain surface, 2 cm. above and left of Injury No. (i) involving temporal, parietal regions on right side cutting underlying bones and damaging the brain and its membranes.;
(iii) incised wound 31/2″ x 1″ x deep to muscle involving auricular and post auricular region on right side;
(iv) incised wound obliquely placed 2″ x 1/2″ x deep to muscle on dorsal aspect of right fore arm, 3″ above the right wrist;
(v) incised cut wound 6″ x 2″ x bone deep on left knee cutting the tibia;
7. Injuries No.s 1, 2 and 5 were grievous, while rest of the injuries were simple. All the injuries were caused by sharp edged weapon and ante mortem. The doctor vide post-mortem examination report Ex. P. 22 opined that the cause of death of the deceased was due to severe injury to brain and that the duration of death was within six hours.
8. After post-mortem examination, the blood stained pant Article 6, which was cut on the left knee, bushirt Article 5, Baniyan (Ganji) Article 7 and underwear Article 8 were taken out from the dead body of Bhupendra Singh and those were seized and sealed by Prithvi Singh vide seizure memo Ex.P. 7. One diary, three photos, his watch, rings, pair of shoes etc. were also seized vide seizure memo Ex.P. 8.
9. On 9.3.84 at 7.55 p.m. Niranjan Singh, A.S.I. of Police Station Kotwali, Ganganagar, who was informed by the Medical Jurist, Government Hospital, Ganganagar also recorded the ‘Parcha Bayan Ex.P. 3. of Mangat Ram, wherein he informed that he alongwith Bhupendra Singh was sitting in latter’s house, that at about 3.00 p.m. appellants Gurdeep Singh and Smt. Chandra Kaur, armed with sword ad ‘Gandasi’ respectively, came there, that Gurdeep Singh dealt a sword blow causing injuries on his left mandible, that Gurdeep Singh gave another sword blow causing injuries on the right hand wrist of Bhupendra Singh, that thereafter Bhupendra Singh ran away from the room and those appellats chased him, that after some time Smt. Jasmil Kaur and Krishan came inside the room to whom he narrated about the incident. He further stated that Smt. Jasmail Kaur had informed him that Gurdeep and Chandra Kaur had killed her son Bhupendra Singh. He also informed that thereafter he was rushed to the hospital. Niranjan Singh sent that ‘Parcha Bayan’ Ex.P. 3. to S.H.O., Police Station, Sardul Shahar as the incident related to the said police station.
10. Appellants Smt. Chandra Kaur and Gurdeep Singh were arrested on 11.3.84 vide arrest memo Ex.P. 12 and Ex.P. 13 respectively. It is alleged that on 15.3.84 appellant Gurdeep Singh volunteered information Ex.P. 37 and in pursuance thereof got recovered blood stained sword Article 1 vide recovery memo Ex. P. 15 from the room of his house. On the same day appellant Smt. Chandra Kaur volunteered information Ex.P. 38 and in pursuance thereof got ‘Gandasi’ Article 11 recovered from the same room. Article 1 and 11 were seized and sealed in different packets by Prithvi Singh. It is the case of the prosecution that appellant Gurdeep Singh at the time of his arrest was putting on blood stained Chola Article 12 and pyjama Article 13 and those were seized and sealed by the I.O. on 13.3.84 vide seizure memo Ex.P. 14. On 5.4.84 all the sealed packets of the various articles seized/recovered were sent to the Forensic Science Laboratory through P.W. 9 Ram Lal, F.C. vide F.S.L. receipt Ex,P. 36, After chemical examination, the sword Article l, Pagree Article 4, bushirt Article 5, pant Article 6, ganji Article 7, Kachhi Article 8 of the deceased, shirt and pyjama Articles 2 and 3 respectively of injured Mangat Ram, piece of the door of the room and piece of ‘Ish’ of the cot Articles 9 and 10 respectively and chola and pyjama Articles 12 and 13 of appellant Gurdeep Singh were found stained with human blood. The ‘Pugree’, pant, shirt and baniyan of deceased Bhupendra Singh were found to be stained with B group blood. However, the blood group of stains of other articles could not be determined due to disintegration as per F.S.L. report Ex.P. 27. After completion if investigation, on 27.3.84, a challan was submitted against appellants Gurdeep Singh and Smt. Chandra Kaur only under Sections 459, 307, 302/34 I.P.C. in the court of Judicial Magistrate No. 1, Ganganagar, who committed the case.
11. It appears that on 17.3.84, P.W. 6 Avtar Singh submitted an application Ex.P. 18 to the Dy. S.P. Sangeria alleging that on 9.3.84 Gurdeep Singh and his wife had committed the murder of his son Bhupendra Singh, that appellants Udai Singh Talla Singh, shamsher Singh and Dhanna Singh had abetted Gurdeep Singh to commit the murder of Bhupendra Singh and also entered into a criminal conspiracy and, therefore, proceedings under Section 302 and 109 I.P.C. against them be also taken. Alongwith that application, he also submitted his signed statement Ex.P. 19. In that statements, he mentioned that on 6.3.84 he had gone to village Rattu Khera to see his daughter and that on 9.3.84, when he reached Sardul Shahar, Midia @ Dilip (P.W. 5) had informed him that in the evening of 8.3.84 while he (Midia) was going in front of the office of Truck Union, he had seen appellants Gurdeep Singh, Dhanna Singh, Talla Singh, Udai Singh and Shamsher Singh standing there, that they were telling to appellant Gurdeep Singh that since the latter has a dispute with Bhupendra Singh regarding the house and since they also bore enmity with Bhupendra, he should commit the murder of Bhupendra Singh and that they also assured Gurdeep Singh that they would defend him. It was also mentioned in statement Ex.P. 19 that Midia had further informed Avtar Singh that appellant Gurdeep Singh had promised those appellants that he would kill Bhupendra Singh the next day. It appears that no action was taken by the police on Ex.P. 18 and Ex.P. 19. Thereupon P.W. 6 Avtar Singh filed a criminal complaint dated 12.4.84 Ex.P. 28 againt all the appellants for the offences under Sections 302 read with 109 and 120 I.P.C. before the learned Magistrate, who sent for a report under Section 210 Cr.P.C. from the S.H.O. vide letter Ex.P. 41. Prithvi Singh, S.H.O. submitted his report on 24.5.84 to the effect that facts in respect of the murder of Bhupendra Singh enumerated in the Criminal complaint Ex.P. 28 were found to be correct and that challan against appellants Gurdeep Singh and Smt. Chandra Kaur had already been filed in the court. The learned Magistrate, after recording evidence under Sections 200 and 202 Cr.P.C. by his order dated 4.10.85 took congnizance against appellants Dhanna Singh, Udai Singh, Talla Singh and Shamsher Singh for the offence under Section 302 read with 120B/109 I.P.C. The said appellants filed a revision petition before the learned Sessions Judge, Sri Ganganagar who by his order dated 15.3.86 dismissed the same. Ultimately the learned Magistrate by his order dated 22.3.86 committed the case against those appellants to the Sessions Judge, who consolidated both the cases.
12. The learned trial Judge framed charge for the offences under Section 459, 307 and 302 I.P.C. against appellant Gurdeep Singh.under Sections 459, 307 and 302 read with 34 I.P.C. against appellant Smt. Chandra, Kaur and under Section 302 read with 109 and 120 I.P.C. against rest of the appllants, who denied the indictment. The prosecution examined as many ,as ten witnesses. All the appellants denied the circumstances appearing against them in the prosecution evidence and asserted that the prosecution witnesses have deposed against them due to animosity. Appellant Gurdeep Singh claimed that he was in possession of the whole house (plot No. 144) and that he has also filed a civil suit in respect of the said plot, that in that house he had constructed a temple and installed a deity of ‘Shiv ji where people used to come there. He further claimed that at the time of the alleged incident, he was not present in his house and that prior to the incident he had sustained injury on his hand by the glass of his almirah. Other appellants pleaded that they have been falsely implicated. However, the appellants did not examine any witness in their defence. The learned trial Judge after trial convicted and sentenced the appellants in the manner indicated above. Hence these appeals.
13. We have heard Sarva Shri H.S. Kharlia and H.S. Sandhu for the appellants, Shri V.R, Mehta the learned Public Prosecutor and Sarva Shri S.R. Singhi and Suresh Kumbhat for the complainant at length and perused the record of the lower court in extenso.
14. During the pendency of these appeals, appellant Dhanna Singh expired and as such his appeal has abated.
15. It has been strenuously canvassed by Shri H.S. Kharlia that presence of P.W. 1 Smt. Jasmail Kaur is neither natural nor reliable, that her conduct was also not natural, because even after she had seen appellant Gurdeep Singh inflicting sword blows on her son’s head, she did not go near the deceased nor did she raise an alarm, nor she tried to pour water in the mouth of her son Bhupendra. According to him, this was not at all natural conduct of a mother, that moreover as per statement of Smt. Jasrnail Kaur at the time of alleged incident, she was carrying the articles purchased by her in the Mandi, but the Investigation Officer did not find any such article lying near the place of incident and, therefore, the learned trial Judge has committed an illegality in treating her as a credible witness. Shri Kharlia has contended that P.W. 2 Mangat Ram did not know appellants Gurdeep Singh and Smt. Chandra Kaur prior to the incident and admittedly no identification test parade of these appellants was held, hence their identification by P.W. 2 Mangat Ram in the court for the first time is meaningless. According to him, Mangat Ram is not an independent witness. Shri Kharlia has asserted that in this case the prosecution has not produced the material witness Krishnia and other independent witnesses of the locality, which raises a strong suspicion against the prosecution. Appellant Gurdeep Singh’s injury has also not been explained. Thus, the prosecution has concealed the true version of the alleged incident and an adverse inference should be taken against the prosecution. He has vehemently contended that in this case F.I.R. Ex.P. 1 is a post investigation document and the delay in its despatch to the Magistrate has also not been well explained. In the alternative, according to him the alleged incident did not take place at 3.00 p.m., on the other hand from the evidence it appears that it took place around 1.00 p.m. and at that time Smt. Jasmail Kaur was not present and as such the F.I.T. was also not lodged promptly. His another contention is that appellant Gurdeep Singh was arrested on 11.3.84 and at that time he was putting on the blood stained Chola and Pyjama Articles 12 and 13 respectively, but those were seized by the I.O. as late as on 13.3.84. Therefore, seizure of those articles is doubtful and meaningless. He has pointed out that in this case alleged recoveries of blood stained sword and ‘Gandasi’ at the instance of appellants Gurdeep Singh and Smt. Chandra Kaur have also not been proved beyond reasonable doubt and the link evidence regarding keeping the seized articles of this case in sealed condition in the Malkhana is missing. Moreover from the F.S.L. report, the blood group of the blood stains on the sword and other articles have not been ascertained due to disintegration. Therefore, the recoveries of blood stained clothes and the sword Article 1 at the instance of appellant Gurdeep Singh do not connect him with the crime. Shri Kharlia has argued that appellant Smt. Chandra Kaur has been falsely implicated and there is no evidence that she has a common intention and premeeting of mind with appellant Gurdeep Singh to commit the murder of Bhupendra Singh and to attempt to commit murder of Mangat Ram. The learned trial Judge ignoring the aforementioned material facts committed patent Illegality in convicting and sentencing the said appellants. Shri Kharlia has also urged that from the evidence recorded in this case it can be safely inferred that deceased Bhupendra Singh and injured Mangat Ram were aggressors, who wanted to forecibly take possession of appellant Gurdeep Singh’s house. Thus appellants Gurdeep Singh and Smt. Chandra Kaur had the right of private defence, but true facts have been concealed by their prosecution. According to him, at the worst the appellant Gurdeep Singh can be held to have exceeded his right of private defence and, therefore, the offence made out against him does not travel beyond Section 304 Part I.P.C. He has cointended that appellant. Gurdeep Singh has been under detention for last more than eight years, hence he may be sentenced for the offence under Section 304 part I I.P.C. to the period already undergone by him.
16. As regard other appellants, it has been strenuously urged that since the learned trial Judge acquitted them for the offence under Section 120B I.P.C., on the self same evidence, they could not have been found guilty for the offence under Section 302 read with 109 I.P.C. Apart from it, as per statements of P.W. 5 Midia, he had informed P.W. 1 Smt. Jasmail Kaur about the incident, wherein these appellants had abetted appellant Gurdeep Singh to commit the murder of the deceased, on 9.3.84 when she was going to the police station to lodge the report but even then in the F.I.R. neither the names of appellants Dhanna Singh, Talla Singh, Udai Singh, Shamsher Singh nor the alleged incident of 8.3.84 finds mention, therefore, These appellants have been falsely implicated later on. Moreover, P.W. 5 Midia’s testimony is replete with numerous infirmities and the story of alleged conspiracy and abetment on the public street is highly improbable, apparently artificial and concocted. He has urged that the prosecution evidence against these appellants is weak, uncorobofated and untrustworthy, and that the learned trial Judge has committed an illegality in convicting them.
17. On the other hand Shri V.R. Mehta, the learned Public Prosecutor and Shri S.R. Singhi, the learned Counsel for the complainant have reiterated the reasonings given by the learned trial Judge and supported the impugned judgment.
18. We have betowed our most anixious and thoughtful consideration to the rival submissions made before us. We have also been taken through the entire evidence recorded in this case exhaustively. The homicidal death of Bhupendra Singh stands conclusively established by the testimony of P.W. 4 Dr. Kailash Chand, who conducted the medico legal autopsy.
19. First of all we would like to deal with the case of appellants Gurdeep Singh and Smt. Chandra Kaur.
20. P.W. 1 Smt. Jasmail Kaur is the informant and the mother of the deceased. She resides in her Chak, which is about 2-3 Kms. away from the house in dispute (Plot No. 144) situated in Mandi, Sardul Shahar. She states that her husband Avtar Singh had purchased the said house and that her son Bhupendra was residing therein. P.W. 6 Avtar Singh, who is the. father of the deceased, deposes that the said house initially belonged to Smt. Ramkali Nuxse, who has sold the same to Smt. Dilip Kaur w/o Babu Singh Sunar. He states that he purchased the said house from Smt. Ramkali and that he was in possession of the eastern portion thereof, while Gurdeep Singh unauthorisedly took possession of its western portion. He deposes that he had purchased the said plot about 4-5 months prior to the incident and admits that appellant Gurdeep Singh has filed a suit against him and others in respect of the said house. A perusal of the certified copy of the plaint dated 18.11.83 filed by appellant Gurdeep Singh against (1) Smt. Ramkali, (2) Avtar Singh and (3) Surjeet Singh in the court of Munsif and Judicial Magistrate, Sri Ganganagar, which was filed before the learned trial Judge on 6.1.89 in this case, discloses that appellants Gurdeep Singh filed that suit for specific performance of contract of sale and for recovery of possession of plot No. 144 on the basis of agreements dated 28.10.73 and 28.6.74 and alleged will dated 5.9.78 executed by Smt. Dialip Kaur. In that plaint, appellant Gurdeep Singh vide para No. 7 had specifically pleaded that about two weeks prior to filing of the said plaint, defendant Smt. Ramkali unauthorisedly put in possession defendant Avtar Singh on the eastern half portion of the said plot and refused to get the sale deed executed in his favour i.e. appellant Gurdeep Singh. Appellant Gurdeep Singh in that plaint also sought the relief of recovery of the said half eastern portion of the said plot. Therefore, from the plaint filed by appellant Gurdeep Singh, it stands well established that on the day of incident Avtar Singh through his son Bhupendra Singh deceased was in possession of eastern half portion of the disputed plot and that the western portion was in possession of appellants Gurdeep Singh and Smt. Chandra Kaur. Thus, appellant Gurdeep Singh in his plea recorded under Section 313 Cr.P.C. has wrongly asserted that he was in possession of the whole plot in dispute.
21. P.W. 1 Smt. Jasmail Kaur deposes that on the ill fated day of the incident she came from her Chak to Mandi, Sardul Shahar for making purchases of house-hold articles, that at about 3 p.m. when she alongwith her servant Krishan was coming to her house i.e. the plot in question and when she was about 2-3 houses away therefrom she saw her son Bhupendra Singh coming out from his house running, that appellants Gurdeep Singh and Smt. Chandra Kaur, who were armed with a naked sword and ‘Gandasi’ respectively, were hotly pursuing him, that thereupon she ran towards them, that in the meanwhile appellant Gurdeep Singh and Smt. Chandra Kaur assaulted Bhupendra Singh and felled him down on the way near the house of Sheopat Kumhar, that when she went near them in order to rescue her son, appellant smt. Chandra Kaur ran towards her and told that if she advanced further, she would inflict ‘Gandasi blow to her Jasmail Kaur further states that appellant Smt. Chandra Kaur was also exhorting her husband appellant Gurdeep Singh that Bhupendra Singh should not be spared and be killed, that appellant Gurdeep Singh inflicted sword blows on the head and knee of Bhupendra Singh, who succumbed to his injuries. She further states that after inflicting the injuries, appellants Gurdeep Singh and Smt. Chandra Kaur fled away. She deposes that since her son had died, she went inside her house, where she found Mangat Ram lying injured in the room, that his left jaw was cut and blood was lying scattered on the cot and floor of the room. She further deposes that Mangat Ram informed her that he and Bhupendra Singh were sitting on the cot, that appellant Gurdeep Singh came there having a sword (Kripan) and told Bhupendra Singh that he would just now give him the house (Plot) and dealt a sword blow causing injuries on his (Mangat Ram’s) face, that thereafter Gurdeep Singh dealt a sword blow on Bhupendra Singh, who ran away from the room. Smt. Jasmail Kaur admits that there was a dispute between them and appellant Gurdeep Singh for the said plot, because appellant Dhanna Singh and others had forcibly put Gurdeep Singh in possession of a portion of that plot and that due to that animosity Gurdeep Singh had murdered her son. She states that thereafter, she came out from the house, that by that time Jagsir Singh had also come at the place, where the dead body of Bhupendra Singh was lying, that leaving Jagsir Singh there near the dead body, she went to the Police Station, Sardul Sahar, where she made an oral report to the S.H.O. who drew F.I.R. Ex.P. 1 and got affixed her thumb impression thereon. She further states that after lodging the report she returned to the place of occurrence, where her husband Avtar Singh had also come there and to whom she narrated the incident. She further states that the police party reached there and that in her presence the S.H.O. prepared the site plan Ex.P. 2 She has identified Kripan (sword) Article 1and stated that it was the same sword, which the appellant Gurdeep Singh had with him at the time of the incident and from which he had inflicted injuries to the deceased. In her cross examination, she states that she is an uneducated lady and as such she does not know the exact distance between her Chak and the plot in dispute. She states that she did not know as to at what time she had started from her Chak, but categorically states that at about 3 p.m. she had reached near the disputed plot after making purchases. She, however, does not remember about the details of the purchases made by her, but states that all those articles were in a bag. She states that she had purchased those articles on cash and that Krishan Mirasi, who was her servant those days, was with her. She states that Krishan Mirasi is now not in her employment. It may be mentioned here that in her police statement Ex.p. 1 dated 9.3.84 at portions A to B she had stated that on that day she had come from her Chak to Mandi Sardul Sahar for making purchases alongwith Krishan and that at about 3 p.m. when she reached near her residential house she saw her son Bhupendra running out therefrom. Thus, she had not stated that she had reached her house after making purchases. However, during trial she states that she had come there after making purchases. But this is not a material improvement. P.W. 10 Prithvi Singh, I.O. states that immediately after the- F.I.R. Ex.P. 1 was drawn by him, he reached the place of occurrence and prepared the site plan Ex.P. 2 and memo thereof EX.P. 2A and that at that time he did not find any bag lying there. Simply because, he did not find the bag near the place of occurrence, it can not be held by any stretch of imagination that Smt. Jasmail Kaur was not present at the time of alleged incident. The bag containing house-hold articles was not at all related or connected with the murder of the deceased. Therefore, it was not a material article. It may be just possible that Krishan Mirasi, the servant of Smt. Jasmail Kaur, might have taken away that bag. In our considered opinion, the non-recovery of any bag or house-hold article is not at all fatal to the prosecution case.
22. Smt. Jasmail Kaur deposes that she was at a distance of 3-4 houses, when for the first time she had seen Bhupendra Singh running out from her house and that she had become perplexed and as such she could not give the exact distance. She emphatically states that Bhupendra Singh was not having any weapon with him and that he had fallen down near the house of a Kumhar, whose name she does not remember, that she had gone near the place of incident and that at that time appellant Gurdeep Singh was chasing the deceased inflicting injuries to him. However, she does not remember the exact number of blows dealt by appellant Gurdeep Singh, who had caused sword injuries on the arm and knee of Bhupendra Singh. She deposes that even after Bhupendra Singh had fallen down, appellant Gurdeep Singh dealt sword blows on his head. She states that when she came near Bhupendra, appellant Smt. Chandra Kaur armed with a ‘Gandasi’ came towards her, threatened to kill her and, therefore, she could not apprehend the assailants. She admits that after seeing the dead body of her son, she neither fell over him, because he had already died nor tried to catch hold of any limb of the deceased nor tried to give milk or water to him. This explanation is perfectly satisfactory and natural. She emphatically states that when appellant Gurdeep Singh was inflicting injuries to Bhupendra Singh, she had raised hue and cry and that at that time many persons had assembled there, but she did not remember their names. She deposes that none of these persons, who had collected there tried to rescue Bhupendra or to apprehend the appellants. Since Bhupendra had already died, there was no occasion for her to have called the doctor. In our considered opinion, this conduct of Smt. Jasmail Kaur is not at all unnatural or abnormal.
23. Shri Kharlia had relied on the case of Banwari Lal v. State, 1992 (Cr.LR (Raj.)-92. In that case the incident of murder was witnessed by P.W. 4 Abhimanyu and her sister P.W. 5 Roshani. The deceased had sustained fire arm injuries on his chest and arm. The testimony of these witnesses was full of infirmities. They did not raise any hue and cry when the deceased was shot, nor they tried to apprehend the assailants nor they had fallen on the deceased as no blood stain was found on their clothes. It was held that it was not a usaul conduct of a human being, who witnessed the murder of his/her real brother. Their ocular testimony was also not supported by the medical evidence. In such circumstances, the conviction of the appellant was set aside. Apparently such are not the facts of the instant case. Here Smt. Jasmail Kaur raised hue and cry. She went near the place of the incident, but since appellant Smt. Chandra Kaur threatened to kill her by ‘Gandasi’ she stopped there. Since Bhupendra Singh had succumbed to his injuries and died instantaneously. Hence the occasion did not arise for her either to have poured milk or water in the mouth of Bhupendra Singh or to have called the doctor or to have touched his dead body. The testimony of Smt. Jasmail Kaur stands fully corroborated by the medical evidence. In such circumstances, Banwari Lal’s case (supra) does not come to the rescue of the appellants.
24. P.W. 10 Prithvi Singh, Investigation Officer, specifically admits that due to party fraction, none of the neighbours of the place of occurrence had come forward to give his statement though he interrogated them. From the evidence recorded in this case, it stands firmly established that P.W. 6 Avtar Singh and the appellants had long drawn litigation and enmity. In such circumstances, it is not at all unnatural that the neighbours of the place of occurrence did not come forward to depose about the incident due to party fractions. Smt. Jasmall Kaur admits that after she had returned from the police station, she had seen 2-3 Sepoys of Central Reserve Police, who had assembled there, but since those persons were not eye-witnesses to the incident, they were not material witnesses and their non-production does not raise any adverse inference about the prosecution story. Smt. Jasmail Kaur has been cross examined at length and confronted with portions A to B, C to D, E to F of F.I.R. Ex.P. 1, but in our considered opinion she has not made any material improvement or ommission from her earlier version except that during trial she has stated that appellant Smt. Chandra Kaur had also assaulted the deceased, whereas in the F.I.R. she had mentioned that appellants Gurdeep Singh and Smt. Chandra Kaur after surrounding Bhupendra Singh felled him down near the house of Sheopat Kumhar. Therefore, we do not place any reliance on the statement of Smt. Jasmail Kaur only to the extent whereby she has stated that Smt. Chandra Kaur had also dealt ‘Gandasi’ blow to the deceased. The presence of Smt. Jasmail Kaur at the time and place of incident was most natural. Her testimony has not been shattered despite a lengthy cross examination. She lodged the F.I.R. Ex.P. 1 immediately after the occurrence. Keeping in view the totality of her statement, to our mind, she is a reliable witness.
25. The presence of P.W. 2 Mangat Ram in the room of Bhupendra’s house has been firmly established, because he too had received injuries in the incident. Thus he is a stamped witness. He deposes that on the day of incident, he had gone to the house of Bhupendra to meet him, that he albngwith Bhupendra Singh were sitting on different cots in the room, that at about 2-2.30 p.m. appellant Gurdeep Singh and his wife, who were armed with sword and ‘Gandasi’ came there, that appellant Gurdeep Singh told that he would give them the house just now “Makan Tumhe Hum Abhi Dete Hai”, that Gurdeep Singh’s wife exhorted that Bhupendra Singh has to be killed, that thereupon Gurdeep Singh dealt a sword blow, which hit him (Mangat Ram) causing injuries on his left side of the mouth and thereupon he fell down from the cot. He further states that appellant Gurdeep Singh gave another sword blow towards Bhupendra Singh, who in order to ward off the attack raised his right hand and sustained sword injury thereon and that thereafter Bhupendra Singh ran away from the room and went out side, who was followed by the said appellants. He further deposes that after some time Bhupendra Singh’s mother came there and told him that appellant Gurdeep Singh had murdered Bhupendra Singh. He states that he also narrated the said incident to her, that after some time police came there and took him to the hospital at Sardul Sahar, where the doctor examined his injuries. He further deposes that since his condition was serious and he was bleeding profusely the doctor after giving first aid referred him to Government Hospital, Ganganagar for treatment. He states that he was admitted in the Ganganagar Hospital on the same day, where Ganganagar police recorded his statement Ex.P. 3. In his cross examination, he admits that he did not know appellants Gurdeep Singh and his wife prior to the incident.that he knew Bhupendra Singh for last 2-3 years and also came to the said house 2-3 times prior to the incident. He deposes that after he reached the house of Bhupendra Singh and stayed there for one or two hours, the said incident took place. He does not remember as to whether on that day Krishan had brought meat and wine for them or not ? He deposes that he had seen appellants Gurdeep Singh and Chandra Kaur entering into that room, that Gurdeep Singh told that they would now give the plot and that Smt. Chandra Kaur exhorted that Bhupendra Singh should be finished. This witness was confronted to his police statement Ex.P. 3, wherein it was mentioned that appellant Smt. Chandra Kaur had told that Bhupendra should not be left alive, to which this witness stated that both the versions mean the same thing. Apparently this is not at all a substantial and material improvement or contradiction. This witness admits that he was brought from hospital Sardul Sahar to Government Hospital, Ganganagar by a police constable. He states that after receiving injuries, he had become unconscious and that he regained his consciousness at Ganganagar Hospital. He refuted the suggestion that Smt. Jasmail Kaur had not met him in the room. It is true that no test parade of appellants Gurdeep Singh and Smt. Chandra Kaur was got conducted and that P.W. 2 Mangat Ram has seen and identified them in the court after incident, but it may be mentioned here that this witness had disclosed the names of these appellants to P.W. 1 Smt. Jasmail Kaur. This fact also finds mention in F.I.R. Ex.P. 1, which was lodged immediately after the occuirrence on the same day at 3.20 p.m. P.W. 4 Dr.Kailash Chand deposes that he had examined the injuries of Mangat Ram on 9.3.84 at 3.40 p.m. at Government Hospital, Sardul Sahar and found the injuries enumerated in medico legal report Exp.P. 20. He further deposes that Mangat Ram was bleeding profusely and that he was given first aid and referred to Ganganagar Government Hospital for immediate treatment, X-ray examination and surgical consultation. He also deposes that he had examined Mangat Ram on the requisition of S.H.O., Police Station, Sardul Sahar.
26. P.W. 7 Dr. R.K. Gupta, Medical Jurist, Government Hospital, Ganganagar states that on 9.3.84 at 7.10 p.m. he had examined the injuries on P.W. 2 Mangat Ram, who was referred to by Medical Officer, Primary Health Centre, Sardul Sahar. He has proved the medico legal injury report Ex.P. 31. He further states that he immediately informed the S.H.O., Police Station, Kotwali, Sri Ganganagar. P.W. 4 Dr.Kailash as well as P.W. 7 Dr. R.K. Gupta specifically depose that even after receiving the injuries Mangat Ram was in a position to speak. Niranjan Singh, A.S.I., Police Station, Kotwali, Shri Ganganagar also recorded the ‘Parcha Bayan’ Ex.P. 3 or Mangat Ram on 9.3.84 at 7.55 p.m. This ‘Parcha Bayan’ has been proved by P.W. 2 Mangat Ram and after hearing Ex.P. 3, he has admitted the contents thereof. In ‘Parcha Bayan’ Ex.P. 3 also it has been specifically mentioned that when he alongwith Bhupendra Singh were sitting in the latter’s house, appellants Gurdeep Singh and Smt. Chandra Kaur armed with sword and ‘Gandasi’ respectively came there, that appellant Gurdeep Singh gave a sword blow on his left Jaw, which started bleeding, that he gave another sword blow causing injuries on the right hand of Bhupendra Singh, that he fell down, that Gurdeep Singh and Smt. Chandra Kaur chased Bhupendra Singh, who had run away from the room and that after some time Smt. Jasmail Kaur and Krishna came there to whom he had narrated the incident. Thus, in the ‘Parcha Bayan’ Ex.P. 3 also Mangat Ram had given the name of appellants Gurdeep Singh and Smt. Chandra Kaur. Mangat Ram has stated that he had gone to Bhupendra Singh’s house 2-3 times prior to the incident. In such circumstances, it stands to reason to believe that Mangat Ram knew appellant Gurdeep Singh and Smt. Chandra Kaur and that they were not strangers to him.
27. Shri Kharlia has cited Kanan and Ors. v. State or Kerala , State (Delhi Admn.) v. V.C. Shukla and Anr. and Chandra Ram @ Ram Chandra v. State of Rajasthan Cr.L.R.(Raj.)-130, wherein it has been held that if a witness identifies an accused, who is not knn to him in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his power of observation. We respectfully agree with this dictum, but as mentioned above appellants Gurdeep Singh and Smt. Chandra Kaur were not strangers to P.W. 2 Mangat Ram, who had also gone to Bhupendra Singh’s house 2-3 times prior to the incident. Mangat Ram received injury at the hand of appellant Gurdeep Singh. Immediately after the occurrence, he had disclosed the names of these appellants to Smt. Jasmail Kaur, who incorporated this fact in the F.I.R. Ex.P. 1, which was promptly lodged after the incident. Thereafter, Mangat Ram in his ‘Parcha Bayan’ Ex.P. 3, which was recorded by the Ganganagar Police on the same day, again disclosed the names of appellants Gurdeep Singh and Smt. Chandra Kaur. Even in his police statement Mangat Ram gave the names of these appellants. He also did not say either to Smt. Jasmail Kaur or in his Parcha Bayan’ Ex.P. 3, that he did not know these appellants by name and could identify them by seeing them. In such circumstances, not holding of test parade of these appellants is not fatal to the prosecution and only for that reason his sworn testimony can not be effaced and thrown over board especially when he had received injuries at the time of the incident. Therefore, the facts of the case on hand are clearly distinguishable with the facts of the aforementioned three cases cited by Shri Kharlia, and those render little assistance to the appellants. In our considered opinion, the learned trial Judge has given valid and sufficient reasons in treating this witness as a reliable witness.
28. The sworn testimony of P.W. 1 Smt. Jasmail Kaur and P.W. 2 Mangat Ram has been fully corroborated by the medical evidence and the conviction of the appellants Gurdeep Singh and Smt. Chandra Kaur deserve to be affirmed on the basis of aforementioned evidence.
29. It is true that as per prosecution story Krishna was also an eye-witness. P.W. 1 Smt. Jasmail Kaur admits that he was her servant. P.W. 6 Avtar Singh deposes that Krishna lived with him for numbers of years prior to the incident, but thereafter appellants won him over and he was no more in his service. In such circumstances whole prosecution case can not be held to be false and thrown over board, for the non-examination of Krishna P.W. 10 Prithvi Singh, I.O. specifically states that due to party fraction, none of the neighbours of the place of occurrence, was willing to give statement, though he had interrogated them. Therefore, non-production of those witnesses is also not fatal to the., prosecution in this case.
30. Ram Lakhan Singh and Ors. v. The State of Uttar Pradesh A.I.R. 1977 S.C.-1936 relied on by Shri Kharlia, was a case of dacoity with murder. The faillies of accused and deceased were on enemical terms. However, the names of neighbouring witnesses were mentioned in the F.I.R. but the I.O. neither examined them nor cited in the chargesheet. In such circumstances, it was held that non-examination of neighbouring independent witnesses and examination of only certain inmates of the house of the deceased, participation of the accused in the crime was not free from reasonable doubt and that benefit of doubt should be given to the accused. Admittedly it is not a case of dacoity with murder. The names of the neighbouring witnesses were neither mentioned in the F.I.R. nor disclosed in the police statements. As per statement of the I.O. due to party fractions, none of the neighbouring witnesses was willing to give his statement. Therefore, the facts of Ram Lakhan Singh’s case are distinguishable.
31. Another case relied on behalf of the appellants is that of Tamachi and Ors. v. The State of Rajasthan, 1981 Cr. L.R.(Raj.)-293. It was a case under Sections 147 and 366 I.P.C. The witnesses were related to the complainant and were on inimical terms with the accused. It was held that statements of such witnesses should be looked into having regard to overall circumstances. We respectfully agree with this proposition of law and have taken it into consideration while closely scanning and scrutinising the statements of P.W. 1 Smt. Jasmail Kaur and P.W. 2 Mangat Ram injured as also other prosecution witnesses. In that case, it was also held that two important prosecution witnesses, who were named in the F.I.R. and included in the calendar of witnesses, were deliberately withheld by the prosecution. It was held that for that reason an adverse inference should be drawn against the prosecution. As mentioned earlier the prosecution has given satisfactory explanation for not examining Krishna. No other neighbouring witness was either examined nor included in the calendar of witnesses. Therefore, Tamachi’s case (supra) does not substantially help the appellants.
32. That next case cited by Shri Kharlia is that of Savia and Anr. v. State of Rajasthan, 1985 Cr.L.R. (Raj.)-18. In that case witness ‘M’ was present at the place of occurrence, but was not produced by the prosecution. It was held that it was a serious circumstance for consideration while assessing and evaluating the testimony of other witnesses. We have taken into consideration this circumstance while assessing and evaluating the testimony of P.W. 1 Smt. Jasmail Kaur, P.W. 2 Mangat Ram and other prosecution witnesses and in our considered opinion for the non-production of Krishna, the prosecution case can not be held to be false and concocted.
33. Shri Kharlia has asserted that as per contents of arrest memo of appellant Gurdeep Singh Ex.P. 13 dated 11.3.84, there was clotting of blood on the injury on his left hand palm, but the prosecution has not explained this injury and thus it has not come out with the true story about the origin and genesis of the incident and, therefore, appellant Gurdeep Singh deserves to be acquitted by giving benefit of doubt. We are not at all impressed by this argument, which is against the record of this case. There is not a shred of evidence recorded in this case from which it can be inferred that this injury was sustained by appellant Gurdeep Singh during the incident. No such question was put to P.W. 1 Jasmail Kaur and P.W. 2 Mangat Ram injured suggesting that appellant Gurdeep Singh had received any injury on his palm during the incident. On the other hand Gurdeep Singh in his plea recorded under Section 313 Cr.P.C. has specifically pleaded that one day prior to the alleged incident he had received injury on his hand from the glass of an almirah. Therefore, by no stretch of imagination, it can be held that appellant Gurdeep Singh has sustained injury during the incident, and as such the said injury did not call for any explanation from the prosecution.
34. The sworn testimony of Smt. Jasmail Kaur and Mangat Ram injured further finds corroboration from the recovery of the blood stained sword at the instance of appellant Gurdeep Singh.. P.W. 10 Prithvi Singh deposes that he arrested appellant Gurdeep Singh on 11.3.84, who volunteered information Ex.P. 37 dated 15.3.84 and in pursuance thereof in presence of motbirs Jagsir Singh and others got a naked bloodstained sword recovered from his room, which was seized and sealed then and there. P.W. 3 Jagsir Singh fully supports the testimony of Prithvi Singh and proves the recovery of the blood-stained sword Article 1 at the instance of appellant Gurdeep Singh. P.W. 3 Jagsir Singh, who had appeared on the scene of occurrence immediately after the incident and was taken as a motbir has proved the site plan Ex.P. 2 and memo thereof Ex.P. 2A, panchayatnama of the dead body of Bhupendra Singh Ex.P. 4, memo of dead body of Bhupendra Singh, Ex.P. 5, seizure memo of the bloodstained pugree of the deceased Ex.P. 6, seizure memo of sample of blood-stained earth and controlled sample Ex.P. 9 from the place where the dead body was lying as also the seizure memo Ex.P. 10 of blood stained soil and a controlled sample taken from the room, where injured Mangat Ram was lying and the seizure memo of the piece of blood-stained ‘Ish’ of the cot and blood stained piece of the door of the room Ex.P. 11. His statement stands fully Corroborated by the testimony of P.W. 6 Avtar Singh and the statement of P.W. 10 Prithvi Singh, I.O. They have also proved the seizure memo Ex.P. 7 of the bloodstained bushirt Article 5 Pent Article6, Baniyan Article7 and Kuchhi Article 8 taken out from the dead body of Bhupendra Singh after post-mortem examination. The pant Article 6 had a cut on the knee corresponding to the injury received by him. All these three witnesses unanimously depose that the aforementioned articles were seized on the spot. P.W.s Jagsir Singh and Prithvi Singh further depose that on 13.3.84, the blood stained Chola Article 12 and Pyjama Aiticle 13, which appellant Gurdeep Singh was putting on at the time of his arrest, were taken out from his body, after providing him another apparel and those were seized and sealed vide seizure memo Ex.P. 14. P.W. 10 Prithvi Singh has given a satisfactory explanation that since no other clothes were available, the said Chola and Pyjama of appellant Gurdeep Singh were not seized on the day of his arrest. Prithvi Singh further deposes that all the sealed packets of the aforementioned seized articles were kept in his safe custody in the police station and that those were handed over on 5.4.84 to P.W. 9 Ram Lal, F.C., who took them to the Forensic Science Laboratory and procured the F.S.L. receipt Ex.P. 36 (P.W. 9 Ramlal F.C. deposes that all the sealed packets of those articles, which were handed over to him Were kept by him in his safe custody till they were handed over to the F.S.L. and that the seals of those articles remained intact. Therefore, we do not find any missing link of evidence in this case.
35. As per F.S.L. report Ex.P. 27, the ten packets received in the F.S.L. were properly sealed bearing impressions which tallied with the specimen seal impressions forwarded, that Pyjama, Pant, Kameej, Ganji (baniyan) and Kuchha (of the deceased) blood smeared soil, piece of ‘Ish’ piece of door, another packet of blood smeared soil, bushirt, Pyjama and Chola (of appellant Gurdeep Singh) and sword were stained with human blood and that the pugree, pant, Kameej and Ganji (of the deceased) were blood stained with ‘B’ group blood. However, the blood group of other articles could not be determined due to disintegration.
36. In Jhujji alias Surendra Tiwari v. State of M.P., , it was held that the same set of panch witnesses, who witnessed three discoveries and also attachment of clothes of accused was no ground for discarding their testimony on the mere fact that they had good neighbourly relations with deceased. Therefore, the contention of Shri Kharlia that P.W. 3 Jagsir Singh and P.W. 6 Avtar Singh, who were the relatives of the deceased, have been made the motbirs of various recoveries and as such their testimony should be discarded, can not be accepted. In Jhujji’s case (supra) blood stains of human blood on weapon and clothes of accused were found by the serologist, but the blood group of stains could not be determined. Their lordships of the Apex Court held that this did not make the find of human blood on those articles of no consequence and that such a piece of evidence corroborated testimony of a witness, who deposed that he had seen the accused inflicting the knife blow on the deceased. Therefore, to this extent F.S.L. report Ex.P. 27 corroborates the direct testimony of P.W. 1 Smt.Jasmail Kaur and P.W. 2 Mangat Ram injured.
37. In this case, the motive for the crime has also been well proved and we concur with the finding of the learned trial Judge on this count. The plea of alibi taken by appellant Gurdeep Singh is patently false keeping in view the overwhelming reliable evidence tendered by the prosecution against him. Appellant Gurdeep Singh first inflicted the sword blow causing grievous injury to Mangat Ram with an intention to commit his murder. Thereafter he gave a sword blow causing injury on the right hand of Bhupendra Singh, who ran away from the room to save his life. He was hotly chased by appellant Gurdeep Singh and his wife appellant Smt. Chandra Kaur, who was armed with a ‘Gandasi’, thereafter they surrounded and felled him down on the way. Even after Bhupendra Singh fell down, appellant Gurdeep Singh inflicted sword blow on his head causing fractures of his frontal, temporal, parietal and occipital bones, severe injury to the brain resulting in his instantaneous death. The deceased had also sustained a fracture on his left tibia bone. The doctor has opined that head injury was sufficient to cause death. Thus the intention of these appellants to commit the murder of the deceased stands amply proved.
38. As mentioned earlier Tara Singh and Bhupendra Singh were in possession of the eastern portion of the house while appellant was in possession of its western portion. There is not an iota of evidence recorded in this case from which it can be inferred that deceased Bhupendra Singh had brought 5-6 persons and wanted to demolish the wall of the house demarcating the two portions, and that he was an aggressor party. On the other hand it has been fairly established from the evidence that appellant Gurdeep Singh and his wife Smt.Chandra Kaur armed with lethal weapons had committed criminal trespass after making preparation inside the room of Bhupendra Singh and appellant Gurdeep Singh inflicted grievous injury to Mangat Ram and Bhupendra with an intention to commit murder. Therefore after chasing Bhupendra, appellant Gurdeep Singh inflicted fatal injuries to the former resulting in his death. Thus, appellants Gurdeep Singh and Smt. Chandra Kaur did not have any right of private defence of property or person and, therefore, question of exceeding such right of private defence does not arise at all in this case. Hence the facts of the cases Puran Singh and Ors. v. The State of Punjab, A.I.R. 1975-1674, Yogendra Morarji v. The State of Gujarat, and Sham Sunder v. Puran and Anr., 1991 S.C.C.(Cr.)-38 enunciating the principle of law regarding the exercise of right of private defence do not apply in the case on hand.
39. In the instant case from the evidence, it has been established beyond reasonable doubt that appellant Smt. Chandra Kaur has also accompaned appellant Gurdeep Singh and entered into the room of Bhupendra Singh armed with a Gandasi, that in her presence appellant Gurdeep Singh told Bhupendra Singh deceased that he would now given him the plot and that at that moment of time she also exhorted and stated in clear terms that Bhupendra Singh should be killed, that in her presence applicant Gurdeep Singh inflicted a sword blow in an attempt to commit murder causing grievous injury on the mendible of Mangat Ram and again caused injuries on the right hand of Bhupendra Singh and thereafter both the appellants hotly chased Bhupendra Singh, who tried to make good his escape running out of the room that thereafter these appellants way laid Bhupendra Singh and felled him down on the way and at that time also appellant Smt.Chandra Kaur abetted and exhorted Gurdeep Singh to finish Bhupendra Singh, that when P.W. 1 Smt. Jasmail Kaur came near to the place of incident, she challenged her not to proceed further and threatened to give gandasi blow to her. Thereafter both the appellants left the place of occurrence together. Thus, the aforementioned overt acts of appellant Smt. Chandra Kaur manifestly lead to one and only one irresistible conclusion that she had a pre-meeting of minds and common intention with her husband appellant Gurdeep Singh to commit the murder of Bhupendra Singh as also to attempt to commit murder of Mangat Ram, Hence it is not at all a case Of her false implication.
40. Aher Pltha Vajshi and Ors. v. State of Gujarat, , was a murder case. It was established by the satisfactory evidence that all the accused were acting in concert and were associated with each other in initially dragging the deceased inside their door-step as also in throwing out the deceased on the road infront of the door step after he was assaulted inside. The deceased had received multiple injuries. It was held that the said circumstance coupled with the multiple injuries inflicted on the deceased left no room for doubt that all the accused had shared the common intention to cause the death of the deceased.
41. Shri Kharlia has cited the case of Mangi Lal and Anr. v. State of Raj., 1994 Cr.L.R.(Raj.)-63. In that case the death was due to lathi blow causing one injury on the head and two injuries on the knee. The two sons of the deceased were held to be highly interest witnesses. They ascribed two blows while the medical evidence spoke of one injury only. The incident was not premediated and took place on the spur of the moment. The presence of co-accused Ram Chandra on the spot was only natural. No overt act on his part was proved. In such circumstances, it was held that he could not be convicted for the offence under Section. 302 I.P.C. even with the aid of Section 34 I.P.C. Apparently such are not the facts of the case on hand.
42. The next case relie on by Shri Kharlia is that of Balkar Singh and Ors. v. Stage of Punjab . It was a case of free fight. The witness deposed that accused caused injuries to a person. Weapons used, particulars of injuries, injuries sustained were not mentioned. No overt act of violence was proved against the accused. It was held that mere presence of such an accused on the spot can not make him liable for the offence and that his conviction with the aid of Section 34 I.P.C. was not sustainable. Again the facts of this case are at poles apart with the facts of the case on hand. Hence both those cases render little assistance to appellant Smt.Chandra Kaur.
43. For the reasons mentioned above, in our considered opinion, the learned Sessions Judge has correctly scanned, scrutinised and evaluated the evidence recorded in this case and not committed any illegality either of fact or of law in convicting appellant Gurdeep Singh for the offences under Sections 459, 307 and 302 I.P.C. and appellant Smt, Chandra Kaur for the offences under Sections 459, 307/34 and 302/34 I.P.C. The sentences passed against these appellants are also commensurate to the nature and gravity of offence committed by them. Therefore, the appeals filed on their behalf deserve to be dismissed.
44. As regards other appellants, the learned trial Judge has already acquitted them for the offence under Section 120B I.P.C. and on the basis of self same evidence, we do not find valid and sufficient reasons to hold them guilty for the offence under Section 302 read with 109 I.P.C. for the reasons mentioned hereunder.
45. P.W. 5 Dilip alias Media states that on a day prior to the murder of Bhupendra Singh at about 8 p.m., he was going to Mandi Sardul Sahar from his Dhani, that when he reached near the Truck Union, he saw appellants Dhanna Singh, Udai Singh, Talla Singh and Shamsher Singh standing, that appellant Gurdeep Singh was also with them, that at that time appellant Udai Singh had put his hand on the shoulder of Gurdeep Singh and Dhanna Singh was telling “Tu Bhupendra Singh Ka Kanta Nikal De, Hum Tere Ko Chhudwa Lenge Aur Makan Bhi Dilwa Denge”. He further states that at that time it had become dark and that he went to his house, that on the next day morning he went to the house of Avtar Singh, where latter’s younger daughter told him that her father had gone to village Ratta Ka Kheda and that Bhupendra and her mother were also not present in the house. He further states that thereupon he came back to his Dhani. The prosecution has not cared to examine the daughter of Avtar Singh. Thus, there is no corroboration of the statement of Dilip alia Media. In his cross examination in chief, this witness deposed that on the day of incident at about 2.30-2.45 p.m. he had gone to Mandi Sardul Sahar, where Bhupendra’s mother was weeping, that she informed him that Bhupendra has been murdered and that thereupon he had told her that the said appellants were having deliberation for committing the murder of Bhupendra Singh the other day. This witness has not been declared hostile. Since as per statement of Media, he had informed Smt. Jasmail Kaur about the alleged incident of conspiracy/abatement of the appellants for committing the murder of Bhupendra on 9.3.84 at about 2.45 p.m., but this fact does not find mention in F.I.R. Ex.P. 1 Media states that he was examined by the police on the next day of the incident, but P.W. 10 Prithvi Singh denies this fact. As per statement of the Investigation Officer, Dilip Singh and Media had submitted a signed statement dated 12.3.84, wherein it was mentioned that on 8.3.84 appellant Udai Singh was telling to Gurdeep Singh that since the latter has a dispute about the house with Bhupendra, he should commit murder of Bhupendra, but during trial this witness has disowned portions C to D of his signed statement Ex.D. 8 and invented a new story that Udai Singh had simply put his hand on the shoulder of Gurdeep Singh, while appellant Dhanna Singh had assured Gurdeep Singh to finish Bhupendra Singh and assured that they would get him released and also get the house to him. This witness was confronted with this material improvement, but he has miserably failed to give any satisfactory explanation on this count. He admits that he is a history-sheeter of Sardul Sahar, that since the year 1964 about 15-20 criminal cases were launched against him, that he was convicted in one case, but was acquitted by the High Court, that he was also challaned under the Gunda Act as also under Section 110 Cr.P.C., but in those cases proceedings Were dropped against him. He further admits that he was convicted under Section 307 I.P.C. and sentenced to 4 years R.I. alongwith Bhupendra deceased and other and in that case appellant Dhanna Singh had deposed against him. He is thus a highly interested witness. His statement appears us to be highly improbable because no such conspiracy or even act of abatement is made on a public street. Besides this his testimony bristles with numerous infirmities and contradictions of Himalayan magnitude. His bald statement does not inspire confidence. In our opinion, his testimony is unworthy of credence. Even after knowing about the alleged abatement on the part of these appellants to appellant Gurdeep Singh as early as on 8.3.84, he was reticent for about 4-5 days. His testimony that he had informed Smt. Jasmail Kaur about that incident on 9.3.84 does not find any conoboration from the statements of any of the witnesses. He has materially changed his version on different occasions and unsuccessfully tried to invent a new story. In our considered opinion, the learned trial Judge has fallen in an error in blindly relying on the said testimony of this witness, which has been inconsistent throughout. On the basis of such a lame, lifeless and unreliable evidence the offence under Section 302 read with 109 I.P.C. has not been successfully brought home against any of these appellants. Therefore, their conviction and sentence under Section 302 read with 109 I.P.C. are illegal and unwarranted and those deserves to be set aside.
46. No other point was raised before us.
47. In the premises of above discussion, D.B. Criminal Appea. No. 78/89, D.B. Criminal Jail Appeal No. 82/89 and D.B. Criminal Jail Appeal No. 83/89 filed by appellants Gurdeep Singh and Smt. Chandra Kaur are hereby dismissed and their conviction and sentences passed by the learned trial Judge stand affirmed. Non-bailable warrant be issued against appellant Smt.Chandra Kaur to ensure her arrest and she should surrender to serve out her sentence.
48. The appeal filed on behalf of Dhanna Singh has already abated due to his death.
49. D.B. Criminal Appeal No. 20/89 filed on behalf of appellants Udai Singh, Talla Singh and Shamsher Singh is allowed and the conviction and sentences passed by the learned trial Judge by his impugned judgment dated 18.1.89 for the offence under Section 302 read with 109 I.P.C. against them are hereby set aside. These appellants are on bail and they need not surrender. Their bail bonds stand discharged. The Jail authorities be also informed accordingly.