JUDGMENT
A.L. Vaidya, J.
1. The present appellants in Criminal Appeal No. 4 of 1992 and the respondent Bajinder Singh in Criminal Appeal No. 277 of 1992 were tried together in the same trial for the offences under Sections 302/34 IPC. Joginder Singh appellant is the father while appellants Jagtar Singh, Balwinder Singh in Criminal Appeal No. 4 of 1992 and Bajinder Singh respondent in Criminal Appeal No. 277 of 1992 are the sons of Joginder Singh. All of them were charged for committing the murder of deceased Dilavar Singh, the real brother of Joginder Singh. As both these appeals arise out of the same trial pertaining to the same occurrence, accordingly, they are being disposed of by the same judgment.
2. The prosecution case, as put up against the accused persons has been that father of Joginder Singh and that of Dilavar Singh deceased had four plots of land which he left for his four sons Joginder Singh, the deceased Dilavar Singh and two other brothers. Joginder Singh and Mohinder Singh two brothers were already alleged to have raised some construction on their plots while Dilavar Singh had a proposal to raise some construction on his plot. Joginder Singh was having some dispute with Dilavar Singh about the construction being raised by the deceased on his plot.
3. The occurrence took place on 17th August, 1990. In the morning of that fateful day Dilavar Singh had gone to leave, his son at Shivalik School Nangal by his Maruti Van No. HIU 1671. Dilavar Singh as well as his brothers and the accused persons were the residents of village Raipur Sohra, Tehsil and District Una. This deceased Dilavar Singh before going to Nangal to leave his son there in the school had informed his wife Satya Devi (PW 2) and Jai Kaur, his mother (PW 3) that Bajinder Singh accused had proclaimed that the accused persons intended to do away with Dilavar Singh and his son. These two ladies asked for the details from Dilavar Singh who informed that he would be informing those ladies the details of threats given to him by the accused persons after his return from Nangal.
4. It was about 7-20 in the morning when Dilavar Singh came back from Nangal in his Maruti Van after leaving his son there in the school. While he was coming in his vehicle all the four accused persons stopped his van at Chowk Raipur Sohra. At that time, according to the prosecution, accused Joginder Singh was armed with a Barchha (Ex.P2), Balwinder Singh was carrying a Takua (Ex.P 1), Jagtar Singh was having a Gandassi (Ex.P3) while Bajinder Singh was having a Danda (Ex.P4) with him. As the vehicle stopped, Joginder Singh gave a Barchha blow on, the body of Dilavar Singh from the window of the driver’s seat. At that time Dilavar Singh was driving the vehicle and, as such, was occupying the driver’s seat. At the same time Jagtar Singh gave a Gandasi blow on the forehead of Dilaver Singh from the front side glass of the Maruti van. Prosecution case further has been that thereafter Dilavar Singh was pulled out of the van by Joginder Singh as a result of which Dilavar Singh fell down and Balwinder Singh gave a Takua blow on the abdomen of Dilavar Singh. Bajinder Singh, the fourth accused, also gave Danda blows to Dilavar Singh. These four accused were alleged to have given more blows to the deceased Dilavar Singh.
5. At the time of the aforesaid occurrence Kewal Krishan (PW5), Piara Singh (Pw6) and Satya Devi (Pw2) were present near the spot who witnessed the said occurrence. This Kewal Krishan was running a shop at Chowk Raipur Sohra and he opened his shop at about 7-00 in the morning on the date of occurrence and was, as such, one of the witnesses who himself witnessed the entire occurrence from his shop which was situated near the place of occurrence. It has been the prosecution case that Piara Singh (Pw6) at the time of occurrence was in the shop of Mool Raj Barber which was situated near the place of occurrence and he also witnessed the occurrence. According to the further story of the prosecution, this Piara Singh came near the accused persons and pleaded with them not to kill Dilavar Singh but Joginder Singh stated that it was a dispute between the brothers and anyone interfering in their matter would be done to death by them. Satya Devi, the wife of the deceased, was giving water to her buffalo at a public tab at a short distance from the Chowk where the occurrence took place. She witnessed the accused persons fully armed with weapons going towards the van of her husband and thereafter this lady was alleged to have run towards Chowk and, as perthe prosecution case, she also witnessed the entire occurrence causing fatal injuries to her husband by the accused persons. The mother of the deceased and accused Joginder Singh, Smt. Jai Kaur after being informed by Dilavar Singh before going to Nangal with regard to the threat to his life, had gone to the house of Joginder Singh for counselling him against any quarrel between the brothers. It has been the prosecution case that the said lady could not reach the house of Joginder Singh but Joginder Singh and his three sons met her on the way where she saw these accused persons running towards the Chowk with arms in their hands. Smt. Jai Kaur, the mother, asked her son Joginder Singh and other three accused persons not to quarrel but they did not listen to her and went towards the Chowk. Smt. Jai Kaur became senseless when she noticed accused persons running towards the Chowk armed with various weapons. Thereafter, when she regained consciousness she was informed that Dilavar Singh had been taken to Nangal Hospital.
6. After causing fatal injuries to Dilavar Singh deceased, the accused persons ran towards their house while injured Dilavar Singh was taken by his wife Satya Devi, one Madan and Baldev to Nangal hospital for treatment where Dr. K.K. Singh (Pw 12) gave first aid to Dilavar Singh and thereafter Dilavar Singh was referred by the said doctor to the PGI. Chandigarh for further treatment because of the seriousness of the injuries. At that time Shri Piara Singh and Roshan Lal, Panchayat Pradhan (Pw 19) reached Nangal hospital and Roshan Lal met Dilavar Singh in emergency Section at Nangal hospital and at that time Dilavar Singh informed him that the injuries were caused to him by the accused persons. Dilavar Singh was then taken to the PGI. Chandigarh by Smt. Satya Devi, Piara Singh and Roshan Lal and other persons who reached the P.G.I, in the afternoon and the doctor at the PGI. tried to revive Dilavar Singh, but, according to them, he was already dead. It may be referred here that Dr. Dilbag Singh (Pw13), younger brotherof Joginder Singh and Dilavar Singh, was posted as doctor at the PGI Chandigarh. When he was informed he came to the emergency OPD of the PGI where he met Satya Devi and others. Satya Devi was crying at that time and she was not properly dressed. Dilbag Singh was informed about the occurrence who enquired from Satya Devi if the police had been informed. On being told that the police was not informed, Dilbag Singh sent back Satya Devi to the village along with Baldev Singh and Madan Lal. Satya Devi thereafter came back to her village and when she came back it was not known to her whether her husband was alive or dead as her husband’s brother Dr. Dilbag Singh had sent her back to the village.
7. The doctor at Nangal hospital had informed the Nangal Police regarding the arrival of Dilavar Singh in the injured condition at the hospital and this information was conveyed by Nangal Police to Police Post Mehatpur at about 9-05 in the morning where an entry in Daily Diary was made and after receiving this information Head constable Jeet Singh (pw 17) of Police Post Mehatpur reached Nangal at about 10-30 in the morning where he was informed that the injured had been referred to the PGI Chandigarh for further treatment. Thereafter, according to the prosecution, this Jeet Singh proceeded to the PGI Chandigarh where he reached at about 7-45 P.M. Jeet Singh was given death summary in respect of Dilavar Singh by the Incharge Police Post, P.G.I. Chandigarth. Jeet Singh thereafter conducted an inquest on the deed-body of Dilavar Singh in presence of Doctor Dilbag Singh and Roshan Lal. The inquest report Ex. PK was prepared by this Head constable. The doctors at the P.G. I. refused to conduct the post mortem examination on the dead-body of Dilavar Singh. Thereafter, Jeet Singh brought the dead-body back to the District Hospital, Una, on 18-8-1990 for post mortem examination which was conducted by Dr. R. K. Jaswal (Pw 1) at District Hospital, Una, on 18-8-1990 at about 10-30 A.M. The doctor noticed various incised wounds on the person of the deceased, as referred to by him in the post mortem examination report Ex. PA. According to the doctor, death of Dilavar Singh was caused because of shock due to external and internal haemorrhage and probable time that elapsed between death and injury was about three hours and whereas the probable time between death and post mortem was fixed 24 to 36 hours.
8. According to the prosecution, after the occurrence Joginder Singh and his three sons went to the house of Nagina Singh (Pw4) who was the husband of the sister of Joginder Singh. Joginder Singh accused demanded some money from Nagina Singh who was informed by Joginder Singh that they had some quarrel with Dilavar Singh and Joginder Singh was not knowing if Dilavar Singh was dead or alive. The accused also took some food there and thereafter the accused persons went in Maruti van of Joginder Singh. This Nagina Singh, who was related to the families of the accused and the deceased, went to village Raipur Sohra and after coming to know at Mehatpur that Dilavar Singh had been taken to Nangal he went to Nangal and then to the P.G.I. Chandigarh where he saw the dead-body of Dilavar Singh.
9. On that very day Joginder Singh and his three sons also visited the house of Gurmej Singh (Pw11) who was the brother of Bhajan Singh who happened to be the husband of sister of Joginder Singh. Gurmej Singh was informed by Joginder Singh that they had a quarrel with his brother Dilavar Singh. On demand by Joginder Singh Gurmej Singh paid Rs. 200/- to him for purchasing petrol and after taking tea Joginder Singh asked his three sons to go to village Kante to the house of their maternal uncle while Joginder Singh requested Gurmej Singh Pw to leave him at village Raipur on his scooter. Gurmej Singh then took Joginder Singh to village Raipur on his scooter. Joginder Singh was dropped about half kilometer short of village Raipur Sohra by Gurmej Singh wherefrom he went towards fields. Van No. DID 2998 in which Joginder Singh and his three sons had gone to the house of Gurmej Singh was left by Joginder Singh at village Bhalan in front of the house of Gurmej Singh.
10. The wife of the deceased Satya Devi came back from Chandigarh on 17-8-1990 at about 4-00 P.M. to her village where she met ASI Jagdish Chand, Incharge Police Post Mehatpur to whom Satya Devi made statement Ex. PB which was recorded under Section 154, of the Code of Criminal Procedure who sent the same to Police Station, Una, with his endorsement Ex.PY for registration of the case. On the basis of the statement Ex.PB FIR Ex. Pw22/B was recorded at Police Station, Una, at about 5-15 P.M. As Smt. Satya Devi was not in the knowledge of the death of Dilavar Singh by the time she made the statement Ex. PB to the ASI, accordingly, the FIR. was recorded under Section 307/34 of the IPC. This Jagdish Chand ASI. after recording the statement visited the place of occurrence and prepared site plan Ex. PZ. One Chappal Ex.P5 was found by him to be lying near the scene of occurrence which was identified by Smt. Satya Devi as belonging to her husband Dilavar Singh and this was taken into possession vide memo. Ex. PC. Some broken pieces of glass of the van had also been taken into possession by ASI Jagdish Chand. Van HIU 1671 of the deceased was also taken into possession. Another Chappal Ex.P6 was found in Van HIU 1671 which was also identified by Satya Devi as belonging to her husband Dilavar Singh.
11. The police tried to search for the accused on that very day but they were not traced. The house of Joginder Singh was found locked. During investigation the police went to village Bhalan where vehicle of the accused was parked. The said van was searched in the presence of the witnesses and one shirt Ex.P9, one half shirt, Ex.PK), one Dupatta Ex. P11 and one turban Ex.P 12, were recovered from the van which were lying under-neath the mat of the rear seat of the van. These clothes were blood stained and were taken into possession by the police through memo Ex.PJ, Those were sealed. Some documents were lying in the dash-board and those were also taken into possession through recovery memo Ex.PJ.
12. After the arrest of the accused on 22nd August, 1990, Joginder Singh accused while in police custody made a disclosure statement in presence of Roshan Lal and Bakshi Ram witnesses that he had concealed one Gandasi blood stained, one Lathi blood stained, one Barchha blood stained and one Takua near a heap of cow dung in the maize field behind his residential house, wrapped in plastic cover and he was knowing about those weapons and that he could get the same recovered. This disclosure statement of accused Joginder Singh was recorded and thereafter Joginder Singh along with police party and the witnesses went to village Raipur Sohra where he got recovered Takua, Ex.Pl, Barcchha Ex.P2, Gandasi Ex.P3 and Lathi Ex.P4 from his maize field, where those were lying wrapped in a plastic cover. Those were sealed in different parcels and taken into possession vide memo. Ex.PW. The Police on 28th August, 1990 collected blood scrappings from the body of van HIU 1671. Those scraps were sealed after keeping them in a glass bottle. A piece of rexine coyer from the driver’s seat was also taken into possession from Maruti van HIU 1671 through memo Ex.Pl in the presence of the witnesses.
13. Sealed parcels containing Takua, Barchha, Gandasi, Danda, glass bottle having blood scrappings, rexine cover along with clothes of Dilavar Singh were deposited with the MHC. at Police Station Una who sent them to Chemical Examiner, Patiala, through Head constable Surjit Singh (Pw8). Shirt Ex.P9, half shirt Ex.PK), Dupatta Ex.Pl 1, turban Ex.P12 which were also deposited with the MHC. were also sent to the Chemical Examiner Patiala. These articles were later on sent to the Serologist who found the stains of human blood on the clothes of the deceased, Dupatta Ex. P11 and blood scrappings Ex.P8. Origin of blood and stains on other items could not be determined by the Serologist.
14. It was on the basis of the aforesaid prosecution case that all the accused persons faced a trial under Sections 302/34 IPC. The trial court, after concluding the trial, convicted the accused Joginder Singh, Balwinder Singh and Jagtar Singh under Sections 302/34 IPC sentenced these accused persons to undergo rigorous imprisonment for life and pay a sum of Rs. 200/- each as fine and in default of payment of fine they were further ordered to undergo imprisonment for a period of one month. However, the fourth accused Bajinder, Singh was acquitted.
15. The convicts have assailed their conviction and sentence in the present appeal on various grounds while on the other hand the acquittal of accused Bajinder Singh has been assailed on behalf of the State in the appeal referred to above.
16. We have heard the learned counsel for the parties and have minutely scrutinized the entire records.
17. The evidence examined in the trial consists of the ocular account giving by three witnesses, Satya Devi (PW2), Kewal Krishan (PW5) and Piara Singh (PW6). Apart from that the evidence in the shape of extra judicial confession, dying declaration, recoveries has been examined during the trial. Apart from that the mother of the deceased as well as Joginder Singh accused on oath has made depositions material for the disposal of the trial as well as that of the present appeals. The medical evidence consisted of the statements of the doctor from Nangal and, of course, the statement of the doctor at Una who performed the post mortem examination. Apart from that the police officials as well as the other witnesses connected with the investigation have deposed pertaining to the facts releaent to the case.
18. It has been contended on behalf of the appellants that the prosecution in the present case has not been successful in discharging the onus to prove the guilt against the accused persons beyond all reasonable doubt and there are proved circumstances on record which makes the case of the prosecution not legally established as required under the law. It is not so simple a matter as has been contended. In order to appreciate the aforesaid submission along with the arguments advanced on behalf of the State, the evidence examined during the trial has to be scrutinized in accordance with law.
19. As referred earlier, three witnesses PW2, Smt. Satya Devi, PW5 Shri Kewal Krishan and PW6 Shri Piara Singh have been examined during trial who have given the eye witness account of occurrence. The version given by these witnesses has to be taken account of with respect to the description of the occurrence they have deposed and described on oath.
20. PW2, Smt. Satya Devi is the widow of the deceased Dilavar Singh. She deposed on oath that she was an illiterate village lady and has studied up to 4th or 5th standard. The deceased was her husband. She also stated that Dilavar Singh, her husband, was having three more brothers. Joginder Singh, one of the accused, was the eldest brother, while Mohinder Singh was the second one and Dilbag Singh doctor was the youngest. She also deposed that her husband was younger to Joginder Singh accused. She deposed that her father-in-law expired about 5 or six years back. Joginder Singh accused was having three sons and eldest one was Jagtar Singh accused who was also called as Bablu or Billa by his nickname. Balwinder accused was the second son of Joginder Singh who was also called at home as Bittu while Brijinder accused was the third son of Joginder Singh who was also known as Babbi.
21. The witness also deposed on oath that she was having two sons and the eldest one was studying at Shivalik School at Nangal and the youngest was not yet school going. She further deposed that on 17th August, 1990 she was sitting in the house with her mother-in-law in the morning and was getting her son ready for school. She further specifically told that at that time Dilavar Singh, her husband, informed her that Brijinder had threatened to kill him and his sons. This Brijinder was one of the accused during the trial. She also stated that her husband further informed that Brijinder had told that they would kill Dilavar and his two sons and, according to her, on her asking for the details her husband said that their son was getting late for the school and that he would tell her the entire thing after return from the school and thereafter Dilavar Singh took the son to the school in his Maruti Van as the three wheeler in which their son used to go to school had already left. She further stated that her mother-in-law on hearing all this left for the house of accused Joginder for counselling him not to quarrel and she herself took the buffalo to the water tap for giving water.
22. This witness further stated that at about 7-20 in the morning her husband came back after leaving her son at the school and at that time she was giving water to the buffalo when Joginder, Jagtar Singh, Balwinder and Brijinder accused passed basides her and, according to the witness, at that time the van of her husband was coming from Nangal side. She also stated that Joginder and his three sons above named made the van of her husband to stop near the chowk, near the Peepal tree of village Raipur Sohra. She also disclosed that at that particular time Joginder accused was armed with Barchha Ex.P2, Jagtar accused was having Gandasi Ex.P3; Balwinder accused was having Takua Ex.P1 and Brijinder accused was having Lathi Ex.P4. She also disclosed that all the four accused ran towards the van which was coming from Nangal side and they had passed in front of her where she was giving water to her buffalo. She also disclosed that witnessing the accused persons armed with weapons and running towards the van of her husband she became suspicious and, therefore, she also went towards the Chowk. In very clear words she stated that after stopping the van Joginder gave Barchha blow on the abdomen of her husband, and Joginder, according to her, has used Barchha. Ex .P2 for giving that blow through window of the van which was on the driver’s side. She stated that her husband was driving the van himself and at the time of occurrence he was the only occupant of the van. Thereafter, according to her, Jagtar inflicted a blow with Gandasi Ex.P3 on the forehead of her husband and this blow was given by Jagtar from the front glass side of the van. Thereafter, as per this witness, Joginder pulled out her husband from the van and after pulling out Bal winder accused gave a blow with Takua Ex.Pl on the abdomen of her husband and as a result of this., blow intestines came out. She also stated that Brijinder gave a Danda blow to her husband who cried for help by saying “Bachao Bachao”. The witness further added that Kewal Krishan and Piara Singh reached there and they witnessed the occurrence. She also disclosed that Piara Singh requested Joginder not to beat Dilavar so mercilessly but the accused did not stop. She also stated that accused Joginder and Jagtar kept the two witnesses away from the occurrence by showing their weapons and themselves kept on inflicting injuries on the persons of her husband. She also added that she tried to go near her husband for rescuing him but the accused kept her away by threatening her that they would also kill her in case she came forward to rescue her husband. Piara Singh was also threatened by the accused persons for desisting him from going to rescue Dilavar Singh by saying that it was a matter between the brothers and in case of intervention by Piara the accused would kill him like Dilavar. The witness also stated that many other persons were there but she could not recognize them. According to her, after inflicting injuries to her husband all the accused persons went away from there with their weapons and they went towards Charatgarh road. She also stated that she took her husband to the Hospital and Madan and Baldev accompanied her. She also stated that van was driven by Amrik when Dilavar was taken to the Hospital at. Nangal.
23. The witness further added that after about two hours treatment at Nangal her husband was referred for treatment to P. G. I. Chandigarh and at Nangal hospital many people arrived there which included Pradhan Roshan Lal also. She also stated that since she was not in normal state, she was kept away from the place where her husband was being treated at Nangal hospital. According to her, Roshan Lal had some conversation with her husband but she did not know what was the subject of talk as she was away from that place. According to her, Piara Singh, the other eye witness also reached Nangal hospital.
24. The witness also stated that at about 9-30 or 9-00 in the morning they left for Chandigarh along with injured Dilavar Singh and they had gone in two vans. She was in the other van in which Dilavar Singh was not being taken. At P. G. I. Chandigarh, according to this witness, they met her brother-in-law Dr. Dilbag Singh who was the brother of her husband. She also stated that after seeing her condition Dr. Dilbag advised her to go home and take care of herself and her children as the witness had come out at that time without shoes and Chuni etc. She also stated that Dr. Dilbag Singh remained behind at Chandigarh to look after her husband and she came back to her home in one of the vans.
25. She further disclosed that when she came back to her village the Police met her there and she narrated them the whole story in the village. She added that the police recorded her statement Ex.PB which was signed by her. She further disclosed that afterwards she came to know that her husband had expired at P.G.I. Chandigarh and this information was received on the next morning. In her presence the police took into possession Chappals Ex.P5 and Ex.P6 of her husband on the date of occurrence after recording the FIR. The pieces of broken glasses of the van were also seized by the police from the place of occurrence. She also stated that one of the Chappals was lying at the place of occurrence and the other was in the van from where the police took the same into possession. She further stated that the police took into possession the Chappals and broken pieces of glass vide memo. Ex.PC which was signed by her.
26. The witness also disclosed that there were four plots of land which her husband and his brothers had inherited from their father and on one plot Joginder Singh accused had already raised construction. She also stated that Mohinder too had raised construction on his plot and her husband was also intending to raise construction on his plot. She further stated that her husband had also collected iron bars and bricks for the purpose of proposed construction and regarding this proposed construction by her husband accused Joginder used to quarrel with her husband and he used to give threat that he would not permit my husband to raise the construction. She also disclosed that on this score some minor quarrels had taken place earlier between her husband and Joginder but no physical violence took place at any such time as there was only altercations and arguments in this behalf.
27. During cross-examination she has been put various circumstances on behalf of the defence which amounted to improvement of her earlier statement and also some contradictions. She admitted that she had not stated the alias names of the accused in her statement Ex.PB and she also stated that it was correct that she had not disclosed to the police at the time of making Ex. PB that her husband had informed her in the morning regarding the threats being given by accused Brijinder to her husband and her sons but, according to her, she had later given this information also. She also admitted that she did not state in Ex. PB that her mother-in-law had gone to the house of Joginder for advising him against the quarrel. She also stated that she had not stated to the police in her statement Ex.PB or in her supplementary statement that Joginder and his three sons had passed running in front of her when she was giving water to her buffalo. She also disclosed that she had stated to the police that accused Joginder and his three sons had stopped the van of her husband. She was confronted with portion A to A of her statement Ex.PB where it was recorded that the car was stopped by the husband of the witness. There were other aspects of her statement put to the witness which in a way amounted to some improvement and even some contradictions also.
28. The witness during cross-examination also stated that the van was standing on Pucca portion of the road when the occurrence took place and, according to her, it was standing on Charatgarh road which leads to their house from Nangal side. She stated that the engine of the van was on when her husband was assaulted with Barchha but later the engine of the van stopped. She disclosed that the Barchha was trusted in the abdomen of her husband and it was not struck like a Lathi. She stated that the blood came out like a stream from the abdomen of her husband on the spot and fallen in the van also. She also stated that van of her husband was taken up to Nangal and not to Chandigarh. She also stated that the blood had also fallen on the ground at the place of occurrence but she did not know whether the police had taken samples of blood stained earth from the place of occurrence. She stated that it was incorrect that her mother-in-law was hostile towards Joginder accused. She also stated that it was incorrect that statement Ex.PB was recorded by the police on 18th morning after much deliberations and consultations. She denied the suggestion that they had concocted a false case to ruin the family of Joginder at the instance of the enemies of Joginder.
29. The other eye witness examined during the trial was PW5, Shri Kewal Krishan who deposed on oath that earlier he was serving in Army as a Havildar and for the last two years after being discharged from the Army he had opened a small shop of Cigarette-Beedi and minor school articles at village Raipur Sohra. He stated that his shop was located at Chowk in front of Panchayat Ghar. According to him, on 17th August, 1990 he opened his shop and at about 7.00 A.M. he was still dusting the articles in his shop when the car of Dilavar Singh came on the road and stopped near the Chowk. The car was Maruti HIU 1671. He further stated that Joginder Singh and his three sons came from Charatgarh road and he identified the accused Joginder Singh and his three sons who had come there. He also deposed that Joginder Singh and his three sons were carrying weapons in their hands and, as per this witness, Joginder Singh was carrying Barchha Ex. P2, Jagtar Singh was carrying Gandasi Ex. P3, Balwinder Singh was carrying Lathi Ex. P4. Takua Ex. PI and Brijinder Singh was carrying Lathi Ex. P4. The witness stated that Dilavar Singh was sitting on the driver’s seat of his van. According to this witness, Joginder accused made the first assault on Dilavar from the window of the side of driver of the car with Barchha below the chest of Dilavar and thereafter Jagtar Singh accused inflicted a blow with Gandasi from the frontside of the car which struck Dilavar on the forehead after breaking the front glass of the Car. Joginder Singh accused thereafter, according to this witness, dragged Dilavar out from the car window and thereafter Balwinder accused gave a blow on the abdomen of Dilavar with Takua while Brijinder Singh accused inflicted Lathi blows on Dilavar deceased. The witness has been very specific in saying that all the accused persons continued to inflict blows on the person of Dilavar. The witness stated that Dilavar had fallen down when he was pulled out by Joginder from the car and, according to him, this occurrence had taken place at a distance of 8 or .10 Karams from his shop and he himself saw the entire occurrence. He also stated that the wife of Dilavar came on the scene of occurrence. According to this witness, the wife of Dilavar pleaded with accused persons to leave her husband and not to kill him but Joginder accused replied that in case she came forward to rescue her husband they would also kill her and she was asked to keep herself away. The witness further stated that Piara Singh was also present at the barber’s shop which was in front of his shop. According to this witness, Piara Singh pleaded with the accused not to kill Dilavar but Joginder accused replied that it was a dispute between brothers and he should keep away or else they would kill him. This witness further added that Joginder accused was threatening that they would kill anybody who would come forward to save Dilavar. The barber’s shop belonged to one Mool Raj who was also present at his shop. This witness also stated that Mool Raj also witnessed the incident. According to him, Piara Singh was sitting on the bench outside the barber’s shop at the time of occurrence. The witness disclosed that after the occurrence the accused persons ran away towards their house. The witness also stated that Satya Devi took Dilavar towards Mehatpur in the same van of Dilavar and at that time the van was being driven by Amrik Singh driver and the van was being taken towards Nangal hospital. The witness during cross-examination disclosed that he came to know in the evening of 17th August, 1990 that Dilavar had died on the same day and this fact was known to the entire village. According to him, the police came in the village at about 4.00 or 5.00 in the evening and by that time it was known in the village that Dilavar had died. He-stated that Satya had come there after sometime of the arrival of the police in the village and Satya’s statement was recorded by the police. He told that Satya had come to the village before he was interrogated by the police. He further disclosed that he understood the difference between the abdomen and the chest. He disclosed that Barchha blow was not inflicted by accused Joginder on the abdomen but it was inflicted below chest. The witness stated that portion B to B of his police statement Ex. DC was correctly recorded where it was recorded that Joginder had inflicted Barchha blow on the abdomen of Dilavar because he had stated it to the police in that manner. He further stated that it was incorrect to suggest that after the evidence of doctor he had been advised to state the location of Barchha injury below the chest instead of abdomen. He also stated that he had disclosed to the police that Balwinder had inflicted Takua blow on the abdomen of Dilavar. The witness was confronted with portion C to C of his statement Ex.DC where the location of Takua injury being given on the abdomen was not recorded. The witness stated that he had stated this fact to the police. He further stated that he had told the police that Mool Raj had witnessed the occurrence. The witness has been confronted with his statement Ex.DC before the police where the name of Mool Raj has not been specifically recorded.
30. He also disclosed during his cross-examination that Piara Singh did not go inside the barber’s shop at the time of occurrence. He has been specific in saying that Barchha was inflicted by Joginder Singh transversely in a thrusting manner and it was not inflicted like a lathi from upward to downward direction. He also stated that he did not notice if Dilavar had tried to escape from the van after seeing the accused persons. He again disclosed that at the time of inflicting of injuries only Satya Devi, Mool Raj and Piara Singh witnessed the occurrence and others came afterwards. He stated that he did not go to rescue Dilavar because he was unarmed and the accused were showing their weapons. According to this witness, there was blood in the van and at the place where Dilavar had fallen down after being pulled out of the van. He also disclosed that when the police came to the village the van of Dilavar had already come from Nangal and in his presence police did not take blood stains from the van. He stated that he did not go to inform the police after Dilavar had been shifted to Nangal for lodging the report as, according to him, since the injured was to go to Nangal via Mehatpur where there was a police post and he thought that the police might have been informed by that time. He stated that it was correct that there was a party faction in his village and his brother had sunk a well in the village when he was in the Army. He stated that he did not know if Joginder was having a water lifting pump with him and he did not know if his brother had hired the engine of Joginder. He did not know if there was any quarrel between his brothers or Joginder on the damaging of Joginder’s engine by his brothers. He stated that Joginder or his brother had never informed him about any such damage or about any such quarrel. He denied the suggestion that he had a quarrel with Joginder Singh for the aforesaid reason. He also denied the suggestion that he was pressurised by the police by saying that the murder had taken place in front of his shop and that he should become a witness otherwise they would implicate him as an accused. He denied the suggestion that injuries to Dilavar were caused before 6.00 in the morning. He denied the suggestion that he was not present at his shop on the day of occurrence. He also stated that it was incorrect that he was deposing falsely because of party faction.
31. The third eye witness examined during the trial is PW6 Piara Singh who deposed on oath that on 17th August, 1990 at about 7.00or7.30 in the morning he had gone to the shop of Mool Raj for hair cutting and at that time Mool Raj was still cleaning his shop and as such he sat on the bench in front of the shop, of Mool Raj. The witness stated that Dilavar came in his van HIU 1671 from Mehatpur side and he suddenly applied brakes to his van and at that time Joginder Singh and his three sons came in front of the van. The witness identified accused Joginder Singh and his three sons who were the accused present in the Court. He also added that Joginder Singh and his three sons had come from Charatgarh road side and Joginder Singh inflicted a Barchha blow on Dilavar from the window of the van. Jagtar Singh inflicted a blow with Gandasi Ex. P3 from the front side of the Car on the forehead of Dilavar. Barchha Ex. P2, according to the witness, was used by Joginder while inflicting the blow. According to this witness, thereafter Joginder pulled out Dilavar from the van and Dilavar tried to get himself released but could not do so and in the mean time Balwinder inflicted a blow with Takua Ex. PI on the abdomen of Dilavar and Brijinder Singh inflicted Lathi blows on Dilavar. This witness further added that the occurrence was witnessed by Kewal, Mool Raj and the wife of Dilavar. He stated that Dilavar raised cries and the witness requested the accused persons not to give beatings to Dilavar to such an extent that he might die but Joginder Singh asked the witness to keep away because it was a dispute between the brothers. This witness also disclosed that Satya Devi also pleaded with the accused for not killing her husband but Joginder asked her to keep away. The witness stated that Barchha injury inflicted by Joginder was suffered by Dilavar below his chest and above abdomen. The witness added that after inflicting injuries the accused went away from there with their weapons and thereafter Madan, Satya and Baldev removed Dilavar to Nangal hospital in the same van of Dilavar which was driven by Amrik Singh. The witness further added that he went to his house and after taking some money started towards Nangal on his scooter. In the way he met pradhan Roshan Lal and he narrated him the incident and thereafter . Roshan Lal and the witness went to Nangal hospital by a car after leaving his scooter at Mehatpur. The witness disclosed that when they reached Nangal hospital Dialvar was in emergency ward. He stated that Pradhan went inside the hospital whereas the witness remained outside. According to this witness, Doctor advised us to shift Dilavar to Chandigarh and they took Dilavar to Chandigarh. The witness and Pradhan also went to Chandigarh. The witness, Roshan Lal and Satya went in one car to Chandigarh and Dilavar, Madan and Baldev went by another vehicle. The van of Dilavar was left at Nangal. He stated that the place of occurrence was at a distance of 8 or 10 Karams from the place where the witness was sitting. According to him one Karam was equal to approximately five feet.
32. During cross-examination the witness deposed that he stayed at Chandigarh till the dead-body of Dilavar was brought back to the village and he came with the dead-body. He stated that one Head constable from Mehatpur had come to P.G.I Chandigarh but that Head constable did not ask him as to how the occurrence took place. He stated that he himself also not narrated the occurrence to the Head constable. The statement of this witness, according to him, was recorded at village Raipur at about 4 or 5 P.M.on 18th August, 1990. He stated that he did not state to the police that he had come out of the shop after hearing cries of Dilavar Singh. The witness was confronted with portion A to A of his statement Ex. DD before the police where it was so recorded. The witness stated that he was already outside the shop and did not make such statement to the police. He denied the suggestion that he was inside the shop when the injuries were inflicted to Dilavar by the accused persons. The trial court at this stage noted down that the attention of the witness had been drawn to Ex. DD which gave the impression that the witness had come out of the shop of barber after infliction of the injuries and hearing of the cries of Dilavar. He stated that he did not state to the police regarding presence of Mool Raj and Kewal at the time of the occurrence because the police had not asked him about it. According to him, he made the statement to the police on the questions being put to him by the police. He could not tell if the Barchha was inflicted on the ribs of Dilavar or on abdomen part. He denied the suggestion that after examination of the doctor he had been advised to alter the location of the Barchha injury. As per this witness, he did not state to the police that Balwinder had inflicted Takua injury on the abdomen of Dilavar because this fact was not asked to him. The witness further disclosed that he came to know about the death of Dilavar at Chandigarh only. The witness was confronted with portion B to B of his police statement Ex. DD wherein it was recorded that Dilavar had died on way to PG1 Chandigarh. The witness stated that he did not make such a statement. He stated that Dilavar had stopped his van after seeing the accused persons and the accused had come just in front of the van when Dilavar had stopped the van. According to him, so far he recollected none else than Satya, the witness, Mool Raj and Kewal came there when the accused were inflicting injuries to Dilavar.
33. The witness stated that Mito was his wife and Baldev was brother of Madan. He also stated that Kesro was the wife of Baldev. He stated that it was correct that Kesro had a quarrel with Joginder Singh. However, he did not know if the police had come in the village in connection with that quarrel. He denied the suggestion that his wife appeared as a witness against Joginder Singh. He denied the suggestion that he was inimical towards Joginder. He also denied the suggestion that he persuaded his wife to appear as a witness against Joginder with respect to his quarrel with Kesro. He denied the suggestion that his son Babbar had a quarrel with accused Jagtar. He denied the suggestion that his son had inflicted a stone blow on Jagtar in March 1985. He also denied the suggestion that Joginder and Jagtar accused lodged a report at Mahatpur Police Post against Babbar in connection with the aforesaid quarrel. He also denied the suggestion that he was deposing falsely because of enmity with the accused persons.
34. One of the most important witnesses examined during the trial is PW3 Smt. Jai Kaur who happens to be the mother of the deceased as well as Joginder Singh accused. The other accused who were the sons of Joginder were the grandsons of this witness. The version given by her in view of the close relationship with the parties and being the mother has to be appreciated accordingly.
35. Smt. Jai Kaur deposed on oath that Nasib Singh was her husband who died about seven years back. Joginder Singh accused and Dilavar Singh deceased were her sons. Joginder Singh and Dilavar were four brothers. She disclosed that Joginder and the deceased were residing separately. The other two sons of the witness were Mohinder and Dilbag who were also residing separately as stated by the witness.
36. She deposed on oath that on the day of occurrence she along with her daughter-in-law Satya Devi was sitting in the house of Dilavar and in the morning Dilavar informed them that Babbi was telling that he would kill Dilavar and his sons. She also added that after giving this information Dilavar took away his son in the van to school and at that time Dilavar informed them that he would disclose full details after his return. According to this witness, the time was 7.00 in the morning. She further stated that thereafter she went to the house of Joginder for advising him against any quarrel whereas Satya went towards Chowk for seeing the van and she had also gone towards water tap. She stated that she could not reach the house of Joginder as Joginder and his three sons met her in the way who were running towards Chowk. She has been very specific in deposing that at that time Joginder was armed with a Barchha, Brijinder was having a Danda while Jagtar was having a Gandasi and Bal winder was having a Takua. She further added that she asked them not to quarrel but they did not listen to her and went towards the Chowk. She further added that after seeing the accused armed she became unconscious and she was lifted by Sajjan and treated by sprinkling water. She further added that she wanted to see her injured son Dilvar but she was told that Dilavar was taken to Nangal hospital. She also stated that Joginder used to quarrel frequently with Dilaver about land.
37. During cross-examination the witness stated that the police had come on 17th August, 1990 and she told the police regarding the disclosure made by Dilavar Singh to her and Satya Devi in the morning. The statement of the witness Ex. DB before the police was shown to her which was recorded on 18th August, 1990 and not on 17th August, 1990 as deposed by the witness. She also stated that she did not remember if she had stated to the police that Jagtar was armed with a Gandasi, Joginder was armed with a Barchha, Balwinder was armed with a Takua and Babbi was aimed with a Danda at the time when she met the Police. The witness was confronted with portion A to A of her police statement where the kind of weapons with which the accused were armed was not recorded. She further disclosed that they got up that day at about 6.00 in the morning. She stated that she did not ask Dilavar to go and inform, regarding the threats held against him by Babbi accused to police or Panchayat as Dilavar has asked us to tell the whole thing after his return from the school. She stated that Satya did not come to the village with the dead-body of the deceased. She also informed that at the time of occurrence she was residing with Dilavar. She also stated that Joginder and his wife did not serve her. She also denied the suggestion that Joginder and his wife used to ill-treat her and his wife used to give her beatings. She also stated that it was also incorrect that she was deposing falsely against Joginder and his sons for this reason. She denied the suggestion that there was a rumour in the village in the morning, at about 5.30 or 6.00 A.M. that Dilavar was lying injured. She also denied the suggestion that Satya was not present in the village on that day. She also denied the suggestion that Dilavar did not return home during the night intervening 16th/17th August,. 1990 from Nawanshehar.
38. The prosecution examined medical evidence also which consisted of the examination of doctor at Nangal and the doctor who performed the post mortem on the dead-body of the deceased.
39. PW12 is Dr. K.K. Singh, Medical Officer, Canal Hospital, Nangal, who stated on oath that on 17th August, 1990 he was on emergency duty in the morning when Dilavar Singh son of Nasib Chand resident of Raipur, District Una was Brought to the Hospital in a very serious condition. The case was of stab injuries. The doctor further added that keeping in mind the seriousness of the condition of the patient, he was referred to P.G.I. Chandigarh immediately after giving the first aid. The doctor informed the, police at Nangal at about 8.05 in the morning. The doctor further disclosed that he kept on attending Dilavar Singh so long as he remained at Nangal hospital and it was further disclosed by him that Dilavar Singh was unable to make a statement so long as he remained at Nangal hospital though he was not unconscious. According to the doctor, he had given injection Fortwin to the patient for subsiding the pain on his arrival in the hospital. He also stated that Fortwin is a sedative and its influence remains on the patient for 3 or 4 hours generally. He also added that under the influence of the injection the patient would not remain mentally alert. He also informed that the police moved an application for seeking his opinion regarding the fitness of Dilavar Singh to make a statement. The witness on this application opined that Dilavar was mentally unclear and unfit for statement. Ex. DF was the aforesaid opinion given by this witness which had his signatures.
40. PW1 is Dr. R. K. Jeswal, Medical Officer, District Hospital Una, who conducted the post mortem on the body of deceased Dilavar Singh. The. doctor made the following observations:
Dead body of a young male of approximate age of 35 years, measuring 5 feet and 7 1/2 inches, lying on the post mortem table, wearing coca cola colour pant, light camel shade stripped shirt and sky blue under-wear. Shirt and pant were soiled with blood.
1. Loopes of small intestine coming out of an incised wound, in the anterior abdomenal wall 4 inches in length, just to the right of umblicus transversally. There were multiple incisions in the protruding loopes and mesentry with multiple haemorrahages in both.
2. A vertical wound 3 inches in length, 2 1/2 inches lateral to the mid line, extending downward from the level of sternal attachment of the right sixth rib.
3. Oblique spindal shaped wound 2 inches x 1 inch extending down and to the right from the sixth rib (right attachment).
4. Curved wound 2 inches x 3/4 inch extending upward and left laterally from medical border of left eye-brow.
5. Incised wound 4 1/2 inches on palmer aspect of left index middle and ring finger and root of left thumb.
6. 4 to 5 incisions on right fore-arm. Rigor mortis was present and dependant post mortem lividity was also present.
On examination of scalp, skull, vertibrae membranes, brain, and spinal cords, all were pale. On examination of thorax the wound No. 2 in exter-” nal examination was about 6 inches deep and extending inwards and laterally producing incision on the right lung in its lower lobe and on to the medial half of the anterior surface of right hepaticlob producing extensive incision on right lung and liver. Wound No. 3, on external examination, has also about 6 inches depth and was directed downwards inwards and to the right. Its piercing lower lobe of left lung and 1 inch spindal shaped wound on the splenic surface. Both the plural cavities full of blood and both lungs, larynx, trachee and plaurae, were pale in colour. On examination of pericardium, heart, and large vessels, the heart was literally empty with very small clot on right side ventricle. The heart was pale in colour.
On examination of abdomen the incised wound No. 1 had many small intestinal loopes along with mesentry protruding out. There were multiple incision in the small intestinal loopes and mesentry along with multiple haemorrhages. The lower intestinal loopes were gengrenous. The stomach has very little basal secritions. No smell of alcohal or any other smell. The small intestine had foul smelling gases. The large intestines had fical matter and foul smelling gases. Stomach and intestines were pale. The liver had incised wound 4 inches in length on the anterior aspect of medial half of the right lobe with blood oozing out of it. The spleen had one inchlong incised wound in the medial half of anterior surface. Kidneys were normal. All viscera were pale. Abdomenal cavity full of blood. Bladder empty. Organs of generation external as well as internal were normal.
Examination of muscle bones, joints, no specific injury or deformity, no fracture or dislocation found. In my opinion, the cause of death was shock due to external and internal haemorrhage. The probable time that elapsed between injuries and death was about 3 hours and between death and post mortem was between 24 to 36 hrs.
41. Ex. PA was the carbon copy of the post mortem examination report given by this witness. The same was prepared by this witness and bears his signatures. The witness was shown the original in the court during the course of his examination and he has verified the carbon copy to be the correct copy of the original which, according to the witness, was in his hand and also had his signatures.
42. The doctor handed over to police constable Surjit Singh No. 231 the dead-body, inquest papers, a copy of the post mortem report, a sealed bag containing belongings of the deceased and sample of seal.
43. The doctor during the course of his examination was shown Takua Ex. PI, Barchha Ex. P2, Gandasi Ex. P3 and stick Ex. P4 which were taken out of separate sealed parcels.
44. The doctor opined that injury No. 1 to the small intestine could be caused with Takua Ex. PI. He also opined that multiple haemorrhages noticed on protruding loopes and misejitry could be caused with Danda Ex. P4. He also stated that injuries Nos. 2 and 3 with vertical wound on the sixth rib attachment and spindal shaped wound to the right of 6th rib could be caused with Barchha Ex. P2. The doctor also opined that injury No. 4, that is curved wound on the forehead could be caused by Gandasi Ex. P3 with a lesser impact. He also added that injury No. 5, that is incised wound on the middle and index and ring finger and root of left thumb could be caused with Barchha Ex. P2. According to this witness injury No. 6, that is, 4 to 5 incisions on right forearm could be caused with any sharp edged weapon, including Takua Ex. P2, Barchha Ex. P2 and Gajidasi Ex. P3. He also opined that injuries Nos. 5 and 6 could have been possibly caused during course of defence put by the victim. During the examination of this witness the court retained the original post mortem report which was exhibited as Ex. PA/1.
45. During his cross-examination the doctor deposed that injuries Nos. 2 and 3 could be caused by any weapons if it was having a sharp pointed end and two cutting edges. However, it was not specifically clarified during cross-examination as to which of the one weapon could cause injuries Nos. 2 and 3.
46. Doctor Dilbag Singh who was present at PGI Chandigarh and who was the real brother of the deceased and one of the accused was also examined as PW13. Apart from other circumstances brought on record by the witness he deposed that on 17th August, 1990 he was working in P.G.I. Chandigarh in operation theatre and he deposed that on being repeatedly called from the operation theatre he came and went to emergency OPD where he saw many doctors were trying to revive his brother Dilavar Singh who was injured. He also disclosed that the doctors could not revive his brother Dilavar Singh.
47. Apart from the aforesaid facts stated by the witness he also disclosed that Joginder accused was his eldest brother while other three accused were the sons of Joginder Singh. According to him, there were many persons outside the emergency ward. Satya Devi wife of his deceased brother was also there and she was stated to be not in proper condition and in proper clothes and on his enquiry Piara singh, Baldev and others, who were present there, narrated the occurrence which had taken place. The witness also disclosed that he enquired if Satya Devi had informed the police about the occurrence or not. He also enquired whether there was somebody at home of Dilavar Singh and some information had been sent there or not. The witness further stated that he was informed that the police was not informed and no information was sent to the house of Dilavar Singh. This witness found Satya Devi in great shock and he advised Satya Devi to go home at Raipur and also inform the police about the occurrence and the witness asked Baldev and Madan Lal to take back Satya Devi to home. The witness deposed that Satya Devi then left for her home.
48. This witness also stated that after completion of the formalities the dead-body of Dilavar Singh was brought to Raipur Sohra in the morning. He stated that the inquest report Ex. PK was signed by him as a witness and then inquest was prepared by Himachal Police in his presence and in the presence of Roshan Lal who also signed the said report. According to this witness, the post mortem was conducted at Una on 18th August, 1990 at District Hospital.
49. The witness joined investigation and in his presence van No. DID 2998 was recovered from outside the house of Gurmej Singh at village Bhalan and some documents relating to the van were recovered by the police from the dashboard of the van including two shirts, one Pagri and one Dupatta which were recovered from the van from behind the driver’s seat which were lying under the mat. Those clothes, according to this witness, were blood stained which included shirts Ex. P9 and P10, Dupatta Ex. P11 and Turban Ex. PI2. An affidavit mark A, insurance cover mark B and agreement mark C were also recovered from the van. The witness also added that recovered clothes were sealed in a parcel and all the aforesaid articles were taken into possession vide Memo. Ex. PJ which was signed by him and by Gurmej Singh. The seal used, according to this witness, was having impression ‘BS’.
50. This witness was also associated in the investigation on 28th August, 1990 when, the police took blood stains from van No. HIU 1671 and those blood stain clippings were sealed in a glass bottle. Seat cover of the van’s driver’s seat was also taken into possession by the police after sealing the same in a parcel. Ex. P7 was the said seat cover while the glass pot containing the blood stains was Ex. P8. The police took these articles into possession vide Memo Ex.PI which was signed by the witness. During cross-examination this witness deposed that he had not stated to the police that on his enquiry Piara Singh, Baldev and others had narrated him the occurrence when he met them outside the emergency OPD. He also stated ‘that he did not state to the police that he had enquired from Satya Devi whether she had informed the police or not about the occurrence. He admitted that he bad not stated to the police that he had asked Baldev and Madan Lal to take Satya Devi home. There were other facts also put to the witness which he had not stated to the police. Regarding these facts the witness stated that he had not stated the above facts to the police at the time of recording his statement on 19th/20th August because the same were not asked from him by the police. He denied the suggestion that Satya Devi did not go to PGI Chandigarh. He also denied the suggestion that he did not meet Baldev and Piara in PGI Chandigarh on 17th August, 1990. He stated that Baldev came with Satya Devi to the village whereas Piara Singh remained in the PGI. The witness further added that Baldev Singh had again returned to PGI Chandigarh at about 6.00 P.M. after leaving Satya Devi at home. He denied the suggestion that they had falsely concocted the factum of recovery of clothes etc. He denied the suggestion that accused Joginder Singh was against his marriage from Hoshiarpur. The witness added that rather the marriage was celebrated at his house and with the assistance of Joginder Singh. He stated that a daughter of Joginder Singh was studying in B.A. and he looked after all of them. He denied the suggestion that on 19th April they gave beatings to the wife and daughter of Joginder Singh. He has also denied the suggestion that his mother has falsely deposed in this case against Joginder Singh and his sons on his asking. He denied the suggestion that FIR against Joginder Singh etc. was lodged at his instance. He also denied the suggestion that he was having a grouse against Joginder Singh and his sons from the very beginning for his refusal to support him in his education. The witness on the other hand added that he has been supporting Joginder Singh from his savings.
51. The prosecution also examined certain witnesses who could throw some light regarding the happenings which took place just after the occurrence.
52. PW 4 is one Nagina Singh son of Udho Ram who is the husband of Joginder Singh’s real sister. This witness is equally related to accused Joginder singh and deceased Dilavar Singh, being the husband of their real sister. This witness stated that at about 8.30 or 9,00 in the morning on 17th August, 1990 Joginder accused came to his house in a Maruti van and he demanded some money from the witness. He further added that on his enquiry it was revealed by Joginder Singh that he had a fight with Dilavar and he was not knowing if Dilavar was dead or alive and for that purpose he required money. The witness disclosed that Joginder’s three sons were also with him who were standing outside the Maruti van of Joginder Singh on the road. According to this witness, Joginder came to his house all alone. The witness also stated that accused Joginder did not disclose the names of other persons who were involved in the fight with Dilavar. Joginder, according to this witness, demanded some food in his house and his wife gave some food to Joginder which he took with him and went away in the Maruti van along with his sons. The witness also informed that after seeing the appearance of Joginder he could make out that he was quite frightened and nervous and, therefore, he suspected to be a murder case and after departure of Joginder Singh he also took a bus and went to Raipur. The witness disclosed that on his way to Raipur at Mehatpur he enquired from some Tempowala about the condition of Dilavar. He was informed that Dilavar had been taken to Nangal and, therefore the witness also proceeded to Nangal and did not go to Raipur. The witness also added that before his arrival at Nangal Dilavar was sent to PGI Chandigarh. Thereafter the witness proceeded to Chandigarh where he saw the dead body of Dilavar Singh at PGI Chandigarh at about 2.30 P.M.
53. During cross-examination the witness stated that his father-in-law did not give any share in his estate to him and his father-in-law had divided his estate amongst his four sons. He stated that his wife has four brothers and five sisters. He denied the suggestion that Joginder accused had obtained a Will from his father and in that manner Joginder had defeated the claim of his wife in the estate of his father-in-law. He also denied the suggestion that he was having bitter relations with Joginder Singh for the said reason for the last many years. The witness stated that at that time he was working as a Junior Engineer at Bhalana in District Ropar and was on leave on the date of occurrence and he sent his leave application through one Prem Kumar Sharma. He stated that the place of his posting was at about 7 K.M. from his village and his village was at a distance of about 10 K.M. from the village of accused Joginder. He has been specific by deposing that in those days he was residing in his village and not at the place of his posting. At Chandigarh, according to this witness, the police came there but he did not state there to the police regarding the arrival of Joginder Singh at his house but, according to the witness, he disclosed this fact at Una to the Police on 22nd August, 1990. He was definite that he did not make any consultations about the statement before making it to the police. He denied the suggestion that he was deposing falsely on account of his bitter relations with Joginder accused.
54. Another witness, who is also a relation, was examinated as PW11, Shri Gurmej Singh. He stated that Bhajan Singh was his elder brother and Surjit Kaur alias Kamla was the wife of Bhajan Singh. The witness also stated that accused Joginder Singh was the brother of Kamla. The witness, as such, was the younger brother of Bhajan Singh, the husband of real sister of accused Joginder Singh and the deceased Dilavar Singh. This witness is the resident of village Bhalan which is situated on the road side, as stated by him. He further disclosed that on 17th August, 1990 Joginder Singh and his three sons, Balwinder Singh, Jagtar Singh and Brijinder Singh came to his house at about 9.30 in the morning in Maruti van No. DID 2998. According to this witness, Joginder Singh knocked the gate of his house and came inside. The witness stated that Joginder at that time was looking frightened and nervous. The witness added that Joginder Singh informed him that they had a quarrel with his brother Dilavar. According to this witness, Joginder and his sons took tea at his house and Joginder Singh demanded money from him on the pretext of purchasing petrol for his vehicle and the witness then gave Rs. 200/- to Joginder Singh and at that time, according to this witness, Joginder also informed him that he and his sons had a quarrel with Dilavar Singh. The witness further added that after taking tea and money Joginder asked his three sons to go to village Kante to the house of their maternal uncle and on this all the three sons of Joginder left from there and Joginder requested the witness to leave him at his village. The witness disclosed that he then took Joginder Singh to village Raipur on his scooter but Joginder got down half K. M. short of his village Raipur and went towards his fields. The witness also stated that Joginder left his van at the house of the witness. The witness then came back to his house after leaving Joginder and the van of Joginder remained at his house till 19th August, 1990 when the police came there. The witness stated that on 19th August, 1990 the police came there and took the van into possession along with some blood stained clothes and some documents of the van from it. The blood stained clothes, according to the witness, were shirt Ex. P9, half shirt Ex. P10, Dupatta Ex. P11 and turban Ex. P12. According to this witness, these were sealed in separate parcels and he along with Dr. Dilbag Singh signed the recovery memo Ex. PJ.
55. This witness during cross-examination stated that he came to know about the death of Dilavar Singh from the police. He stated that he did not go to village Raipur with Joginder Singh on 17th August, 1990 via Mehatpur. He also disclosed that till 19th August he did not inform anyone about the arrival of Joginder Singh to his house on 17th August, 1990. He also disclosed that the police stayed at his house for about 1 1/2 hours on 19th August, 1990. He denied the suggestion that Joginder Singh and his sons did not come to his house on 17th August, 1990. He also denied the suggestion that Joginder Singh did not leave his van at his house on 17th August, 1990.
56. PW18 is one Shri Baldev Singh resident of village Raipur Sohra to which village Joginder Singh accused belonged. He had also given some account whatever he witnessed just after the occurrence. This witness stated that on 17th August, 1990 between 7.10 or 7.30 A.M. he was cleaning his teeth near the water tap when he saw accused Joginder Singh and his three sons running towards their house with weapons in their hands. The witness also stated that in the mean time he heard some noise that Dilavar had been killed and on this he went towards Chowk near the Peepal tree where he saw Dilavar lying on the ground in injured condition. According to this witness, intestines of Dilavar Singh were coming out and he was bleeding profusely from many parts. He also disclosed that the van of Dilavar was also there. This witness noticed that the glass panes of the van were damaged while Satya Devi, Piara Singh, Mool Raj and Fauji Kewal were also there. He also stated that other persons were also there. Dilavar Singh injured was then put in his van and the witness took him to civil hospital Nangal while Madan Lal and Satya Devi accompanied him to the hospital. The witness informed that the van was driven by one Amrik Singh and at Nangal hospital they were advised to take Dilavar Singh to PGI Chandigarh as his condition was serious. The witness further added that he took Dilavar Singh to PGI Chandigarh where he met Dr. Dilbag Singh who advised him to take Satya Devi back to her village as her condition was serious. The witness stated that he came back to village Raipur with Satya Devi and from the village he again went back to PGI Chandigarh. The witness also disclosed that Piara Singh and Pradhan Roshan Lal also reached at Nangal hospital and they also went to PGI Chandigarh.
57. During cross-examination the witness disclosed that he reached along with Satya Devi in the village at about 2.30 or 3.00 P.M. where he left Satya Devi at her house. He disclosed that he did not state to the police that the front glass of the van had been damaged when he reached the place of occurrence. He also disclosed that he did not disclose to the police that Piara, Madan Lal and Satya were present near the injured Dilavar when he reached there. The witness admitted that he had not stated about the presence of Mool Raj and Fauji Kewal near the injured Dilavar Singh to the police. He stated that his house from the place of occurrence was at a distance of about 100 metres. He denied the suggestion that he did not see the accused running towards their house on the date of occurrence. He also denied the suggestion that he did not take Dilavar Singh to Nangal or Chandigarh. He stated that it was incorrect that he was making a false statement because of his relationship with the deceased. During cross-examination this witness further disclosed that Mohinder was his brother who was earlier residing in Iraq where the deceased Dilavar was also residing. The witness denied the suggestion that Mohinder and Dilavar were god brothers.
58. Another important witness examined during the trial was PW19 Shir Roshan Lal Pradhan who has tried to prove the oral dying declaration made to him by the deceased at Nangal. This witness stated on oath that he was Pradhan of Gram Panchayat Raipur Sohra since 1985. On 17th August, 1990 at about 8.00 in the morning he came to know about the injuries sustained by Dilavar Singh and after hearing this he went to Panchayat Ghar from his house as the place of occurrence is situated near the Panchayat Ghar. He further added that he came to know that Dilavar Singh had been taken to Nangal hospital and on this he along with Piara Singh went to Mehatpur on the scooter of Piara Singh and from there they took a taxi and went to Nangal. The witness added that Dilavar Singh was present in the emergency ward of civil hospital at Nangal and he went to the emergency ward and enquired from the doctorregarding the condition of Dilavar Singh. He disclosed that the condition of Dilavar Singh was stated to be serious and the doctor had also informed him about the requirement of blood. The witness further disclosed that he arranged for blood donors and went inside and at that time doctor advised them to take Dilavar Singh to PGI Chandigarh because his condition was becoming serious. The witness further added that in the mean time he enquired from Dilavar Singh as to by whom the injuries were caused to him on which Dilavar Singh informed him that the injuries were caused to him by Joginder Singh and his three sons with Takua, Barchha, Gandasi and lathi. Thereafter, Dilavar Singh was taken to PGI Chandigarh where they went in two separate vehicles. He further added that at about 11.30 A.M. or 12.00 noon on the same day they reached Chandigarh were Dilavar Singh was taken to emergency OPD where doctors tried to give him treatment. He further stated that at about 3 or 4 PM they came to know that Dilavar had died and next day his dead body was brought back to Una.
59. The witness also added that on 22nd August, 1990 he along with one Madan Lal went to Police Station, Una, where accused Joginder . Singh was being interrogated by the police and in his presence accused Joginder Singh on his interrogation disclosed that he kept concealed a Takua, Barchha, Gandasi and Lathi after wrapping them in a plastic cover near the heap of cowdung in the maize field behind his residential house and could lead the police to the place of concealment and get the above weapons recovered. The disclosure statement, according to this witness, made by accused Joginder Singh was recorded which was Ex.PR which was signed by accused Joginder Singh. This memo, according to this witness, was also signed by him and on Bakshi Ram who was actually accompanying the witness to the Police Station and not Madan Lal, as deposed earlier by him. The witness further added that after recording of the disclosure statement he along with police went with Joginder Singh to village Raipur Sohra at the residential house of accused Joginder Singh and there from behind his residential house from a maize field accused Joginder Singh took out Takua, Barchha, Gandasi and lathi from near the heap of eowdung where the same were lying covered under a black polythene wrapper. Takua Ex. PI, BarchhaEx. P2, Gandasi Ex. P3 and lathi Ex. P4 were identified by the witness to be the same weapons which were got recovered by accused Joginder Singh. The witness further added that the police prepared rough sketches of these weapons which were Ex. PS, Ex.PT, Ex. PU and Ex. PV which were signed by him as a witness. He also added that the police sealed these four weapons separately in four separate parcels and took them into possession vide memo Ex. PW which was signed by him and Bakshi Ram witness. He also disclosed that the maize crop at that time was 4 to 5 feel high wherefrom the aforesaid weapons were recovered.
60. The witness was subjected to a lengthy cross-examination. He stated that he did not record anything in the Panchayat record regarding the present occurrence though he agreed that as Sarpanch he was required to lodge the report of occurrence with the police. He disclosed that he did go to Mehapur on the day of occurrence though the police post at Mehatpur was on one side of the road. He also disclosed that a police constable had reached Nangal but he had no conversation with the police constable regarding the alleged dying declaration. He stated that the constable met him after about 15 or 20 mintues of his arrival there. He also disclosed that Mehatpur Police met him at Chandigarh at 7.00 or 8.00 in the evening but he did not had any conversation with Mehatpur police at that time. According to him, he made the statement to the police next day in the village in the afternoon after cremation of Dilavar Singh. He disclosed that he came to know that Dilavar Singh was dead at about 4.00 PM at Chandigarh. He further added that he had stated to the police that Dilavar Singh had died on way to Chandigarh and further informed that he did not state to the police that Dilavar was taken to the OPD and doctors started treating Mm at PGI Chandigarh. He also stated that when he asked Dilavar Singh about the occurrence the doctor was not present there and before the said disclosure by Dilavar he was knowing the occurrence. He further added that he did not state about the statement made to him by Dalavar Singh to Satya Devi or anyone else in the village or in the hospital. He admitted that he did not record the statement made to him by Dilavar. He denied the suggestion that the was making a false statement regarding the information given to him by Dilavar Singh. He stated that no witness from Una was present at the time of recording of the disclosure statement made by Joginder Singh. He further disclosed that he did not know by whom the inquest was prepared at PGI. The witness identified his signatures on inquest Ex. PK and he stated that these signatures were put by him regarding the dead body of Dilavar Singh.
61. PW10, one Som Nath has been examined to prove some recoveries of articles which were taken into possession from Maruti van HIU 1671. PW15 is one Suresh Kumar photographer who on the asking of the police on 17th August, 1990 took photographs of the alleged place of occurrence and the van of Dilavar Singh. These photographs were Ex. PL/1 to Ex. PL/6 and the corresponding negatives were Ex. PL/1A to Ex.PL/6A. This witness also on 18th August, 1990 took photographs of the deadbody on the asking of the police which were Ex. PM/1 to Ex. PM/3 and the corresponding negatives were Ex. PM/1A to Ex. PM/3A.
62. The prosecution also tendered in evidence Ex. PA A the regort of the Serologist and Chemical Examiner. On the basis of this report the underwear, shirt, Pant, Dupatta and blood scratches from the window of the van were opined to be stained with human blood. The blood stains on shirt, turban, another shirt, Barcha, Gandasi, Takua, two pieces of lathies and seat cover were opined to be disintegrated and their origin could not be determined. The human blood was found, as referred to above, on the wearing apparels of the deceased. The expert further opined that the blood group of the stains on the various items could not be determined being not sufficient for test and on some articles it was opined disintegrated.
63. Ex. PBB was the report of the Chemical Examiner on the basis of which it was opined that stains were found on the underwear, shirt and pant of the deceased and also on the shirt, Dupatta, turban, another shirt recovered from the van and also blood stains were opined to be present on Gandasi while blood was found on Barcha, Takua, two pieces of lathi, seat cover and blood scratches from window.
64. The other evidence examined during the trial was of the police officials who either investigated the case or were associated in the investigation of this case. The important out of these police witnesses examinned was PW 17, Shri Jeet Singh Head constable, who was posted at the relevant time at Police Post Mehatpur. This witness recorded that message received from Police Station Nangal in the daily diary the certified copy of which was Ex. PN. This witness then went to Nangal and, as stated by him, he reached thereat 10.30 A.M. on 17th August, 1990 where he was informed that the injured had been referred to Chandigarh for treatment and thereafter this witness went to PGI Chandigarh where he reached at about 7.45 PM. The witness lodged the report of his arrival at Police Post PGI Chandigarh with the police a copy whereof is Ex. PO. He was given summary by the Incharge of the Police Post at PGI with respect to Dilavar Singh which was Ex. PP. Thereafter, according to this witness, he has conducted the inquest on the dead-body of Dilavar Singh which was Ex.PK. He stated that Dr. Dilbag Singh and Roshan Lal signed the said inquest. The witness brought the deadbody of deceased Dilavar Singh to District Hospital Una on 18th August, 1990 for post mortem.
65. This witness during his cross-examination stated that Dr. Dilbag Singh did not make any statement before him Except stating that Dilavar Singh was his brother. The witness further added that Roshan Lal did not state anything to him regarding the manner of death. However, the witness has stated that he had asked Roshan Lal and Dilbag Singh cursorily about the occurrence but they did not state anything. He denied the suggestion that he had not recorded the names of accused Joginder Singh etc. in the inquest report because he was not knowing about them.
66. PW20 is Inspector Kashmir Singh who recorded the disclosure statement made by Joginder Singh accused and prepared recovery memos f the weapons recovered as a consequence of the disclosure statement.
67. Another important police witness examined is PW22 ASI Jagdish Chand. He stated that he was posted as Incharge Police Post Mehatpur in August 1990 and on 17th August, 1990 at about 4.00 in the evening while he was patrolling in village Raipur Sohra PW Satya Devi came to him and made a statement before him which be recorded under Section 154, Cr. P.C. This statement was Ex. PB which was recorded by this witness and signed by Satya Devi. The witness further stated that after recording the statement Ex. PB he made endorsement Ex. PY on it and sent the same to Police Station, Una, for registration of FIR and thereafter he proceeded to the scene of occurrence. The witness prepared site plan Ex. PZ which, according to him, was correct to the spot and the notes recorded thereon were also correct to the spot position. This witness took into possession Chappal Ex. P5 from the spot through Memo. Ex.PC. According to him, Satya Devi identified Chappal Ex. P5 belonging to her husband Dilavar Singh. This witness also further investigated the case and took van and another chappal Ex. P6 into possession. This witness also examined some of the witnesses during investigation.
68. During cross-examination this witness revealed that the residence of Judicial Magistrate at Una was situated at a distance of one K.M from the Police Station. He disclosed that he might have sent the information regarding the conversion of the FIR to Section 302, IPC to the Police Station after his return to the Police Post Mehatpur at about 11.30 at night but he was not definite about the time of sending such information. He disclosed that the FIR was recorded at Police Station, Una, at 5.15 P.M. on 17th August, 1990. He admitted that for an offence under Section 302, IPC special report is sent to the Magistrate and the Superintendent of Police and he did not send the infonnation regarding the conversion of the FIR under Section 302, IPC for preparation of special report to Police Station because he was on the spot and busy in tracing the accused. He also disclosed that information regarding the death of Dilavar Singh was brought to him by constable Tilak Raj from police post Mehatpur where a wireless message had been received from Chandigarh. The witness further disclosed that the message had been received at Police Post, Mehatpur, at 7.35 PM on 17th August, 1990 and there was no reference of time at which the message was delivered at Chandigarh. The witness denied the suggestion that he came to know about the death of Dilavar Singh at 10.00 A.M. and he purposely recorded the FIR under Section 307, IPC for avoiding preparation of special report. The witness further stated that he had prepared the special report regarding the offence under Section 302, IPC at some time after 7.55 P.M. but he could not tell the exact time. According to him, he sent the special report to police station, Una, in the morning of 18th August, 1990. He also disclosed that special report is prepared and sent from Police Station and he did not send any special report to the Magistrate or to the Superintendent of Police himself. However, he had conveyed the message regarding the death of Dilavar to the Addl. S.P. telephonically and he had sent the report in this behalf to SHO Una. However, he clarified that message to the Addl. S.P. was sent by his Munshi because he was not available at the police post. He also disclosed that as per entry in the Roznamcha the message to the Addl. S.P. was conveyed by his Munshi at 7.35 PM. He could not say if the special report in the case was received after 10,00 A.M. on 18th August, 1990. He denied the suggestion that the FIR in the case was recorded at about 9.00 A.M. on 18th August, 1990.
69. PW23 is Shri Ramesh Chand MHC who stated that on receipt of Ruqa Ex. PB with endorsement Ex. PY he recorded formal FIR Ex. PW22/B which was signed by him. The witness also stated regarding the deposit of various articles taken into possession during investigation. This witness sent various parcels to the Chemical Examiner and he stated that the parcels were not tampered with in any manner when they remained in his custody.
70. This is almost the entire evidence examined during the trial in support of the prosecution. All the accused when examined under Section 313, Cr.P.C. denied the circumstances put to them which stood proved from the prosecution evidence. Their simple defence has been of denial of the occurrence and they being falsely implicated by Dilbag Singh, Jai Kaur and Satya Devi who were inimical to them while the other witnesses Kewal Krishan, Piara Singh etc., according to the accused persons, have deposed against them under the influence of Dr. Dilbag Singh.
71. As pointed out earlier, learned counsel for the appellants Shri T.R. Chandel, has submitted that on the basis of the proved circumstances in the prosecution evidence itself some doubt in the prosecution story in connecting the accused persons with the guilt is created and as a natural consequence thereof all of them are to be given the benefit of the same.
72. There is no dispute to the proposition that prosecution has to prove the charges against the accused persons beyond all reasonable doubt and this onus lay very heavily upon the prosecution which can successfully be discharged by examining independent, reliable and unimpeachable evidence in support of the charges.
73. It may be pointed out that it is not every doubt appearing in the prosecution evidence that has to be weighed adversely to the case of the prosecution. The prosecution in a criminal trial is required to prove the guilt beyond all reasonable doubt’. The doubt, as such, must be reasonable one. What is a ‘reasonable doubt’, it depends upon the proved circumstances in a particular individual case. The word ‘reasonable’ is itself is a relative one and has its connection dependent upon the proved circumstances of each individual criminal case.
74. In criminal case before a person can be convicted of a charge there should be such a certainty of the crime committed by him so as to convince the mind of the Presiding Officer as a reasonable man and that too beyond the possibility of doubt or suspicion.
75. Various High Courts have come to the conclusion that evidence in a criminal case has not to be weighed in a sensitive scale and the prosecution is not required to prove the guilt in a mathematical precision but on the other hand there must be sufficient preponderance of weight on the prosecution before the accused can be held “guilty.
76. What proved circumstances in evidence can be taken as circumstances creating ‘benefit of doubt’? ‘Benefit of doubt’ is nothing but a state of mind when the Presiding Officer cannot say and feel with moral certainty of truth that the charge in a criminal case stood proved in a manner resulting in conviction. Such a doubt should not be a mere doubt which is the result of a wavering mind not in a position to come to a specific inference. It may not be that state of mind that the Presiding Officer has no moral courage to decide upon a difficult and complicated question and take shelter under the aforesaid principle.
77. ‘Benefit of doubt’ is a potent principle available for the appreciation of evidence in a criminal case. This principle affects the judicial mind about the veracity of the prosecution viewed in the light of experience, commonsense and various other factors essential for appreciation of evidence. The court while giving ‘benefit of doubt’ under the proved circumstances in favour of the accused has to act in a most steady manner so as to come to a definite conclusion that particular circumstances proved on record adversely affect the prosecution case in connnnecting the accused persons with the guilt they were alleged to have committed. There is a general maxim talked about and even followed while imparting criminal decisions that it is better that ten guilty persons be acquitted rather than one innocent person be convicted. This maxim, no doubt,, holds good and has been followed while imparting criminal justice but this will not mean that an imaginary or unreal or improbable doubt was enough for holding the accused not guilty if the evidence proved on record as a whole leads to the conclusion of the guilt of the accused as appeared to a prudent man. The doubt, the benefit of which could be given to the accused must come from the mind of a reasonable and just man.
78. Sometimes some doubt not material one in the evidence of the prosecution which even if taken into consideration do not at all materially affect the prosecution case. Such doubts have to be ignored. In some cases some reasonable doubt appears in the prosecution evidence. It has been pointed out earlier that doubts aft bound to appear inasmuch as no criminal case could be proved in a mathematical precision and in such cases the reasonable doubt appearing in the prosecution evidence if explained in a manner appealing to a reasonable man, such reasonable doubt again will have no significant adverse effect on the prosecution story.
79. At this stage (1994) 1 SCC 73 : 1994 AIR SCW 844, State of West Bengal v. Orilal Jaiswal, can safely be referred in order to appreciate the degree of proof required in a criminal case. In this case it has been held that in a criminal case absolute standard for proof does not exist and for proof beypnd all reasonable doubt standard of a reasonable man is to be adopted.
80. The aforesaid case was under Section 498-A read with Sections 306/34 IPC. A part of para 15 and para 16 of this reported judgment are very much relevant which are being reproduced hereunder:
15…Although, the court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubt must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater (1950) 2 All ER 458, 459 : 66 TLR (Pt. 2) 589 has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter.
16. In Gurbachan Singh v. Satpal Singh (1990) 1 SCC 445 : 1990 SCC (Cri) 151: AIR 1990 SC 209: 1990 Cri LJ 562 Mr. Justice Sabyasachi Mukharji (as he then was) has very rightly indicated that the conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simple that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
81. The so called doubtful circumstances pointed out by Mr. Chandel, learned counsel for the appellants, in view of the aforesaid observations can be appreciated.
82. Absence of motive, according to the learned counsel for the appellants, is a circumstance which has to be weighed against the prosecution. As has been the prosecution case, the same does not depend solely on the circumstantial evidence. In a case of that nature absence of motive definitely was a circumstance to be weighed against the prosecution but where the prosecution case rests not only on circumstantial evidence but on the evidence of the persons who have given ocular account of the occurrence the presence or absence of motive loses all significance. Here in the present case there is evidence examined that the deceased and his brother Joginder Singh accused were haying strained relations on account of some landed property but that alone may not be the motive for committing such a heinous crime. It is correct that there is nothing brought on record by the prosecution as to what was the immediate cause which influenced the accused persons to commit such a ghastly act but absence of such a circumstance will not-in any manner be competent to create doubt in the prosecution case which depends upon the eye witness account given by three witnesses examined during the trial whose testimony has to be appreciated in a legal manner.
83. It has been contended on behalf of the appellants that an important circumstance has originated from the prosecution evidence itself which creates doubt that occurrence took place on the place and site, as alleged by the prosecution and as tried to be proved through the eye witnesses. It has been submitted that in case such a doubt is created its natural outcome would be adversely affecting the version given by the witnesses as a whole creating doubt in their testimony which factor has to be considered in favour of the accused. In order to explain this aspect of the matter the learned counsel contended that as per eye witnesses and as per the injuries sustained by the deceased the deceased bleeded profusely at the spot but as per I.O. when he went to the spot, there he could not find blood.
84. In order to take support from the aforesaid submission the learned counsel relied upon 1991 Cri LJ 1464 : AIR 199 1 SC 1316, Buta Singh v. State of Punjab, and (1986) 2 Crimes 667 : 1987 Cri LJ 101 (Delhi), Kadir v. The State.
85. In the Supreme Court case Buta Singh v. State of Punjab (Supra) the charge was for the commission of murder and during prosecution it was proved that the blood was present near the tube-well of the accused and no blood was found from the spot where, according to the prosecution, occurrence took place. It was held that the rejection of defence version that the occurrence took place near the tube-well on the aforesaid circumstances was not justified. It was also held that when two versions are before the Court and the version which is supported by objective evidence cannot be brushed aside lightly unless it has been properly explained.
86. We think there is absolutely no dispute to the ratio of the aforesaid ruling but the same is not at all applicable to the facts of the present case. In the reported case there was a specific defence of the accused that the occurrence took place near the tube-well of the accused where blood was found and not at a place which, according to the prosecution, was the place of occurrence. In the present case such a situation has not arisen at all. There is absolutely no version of the accused which could describe the place of occurrence to be some other place than so described by the prosecution. The reported case was a case where the accused took the right of private defence and there were various injuries found on the person of both the parties. Thus, the applicability of the aforesaid principle will not be available to the appellants in the proved facts of the present case.
87. Again in Kadir v. The State 1987 Cri LJ 101 (Delhi) (Supra) the facts were that blood was found lying in front of the house of the accused during investigation and no blood was found lying at the spot where the deceased was alleged to have been given knife blow injuries by the accused and in that background it was held that as no satisfactory explanation by prosecution about this discrepancy was given, accordingly, its effect was not to believe the prosecution story, as alleged. In this case also the prosecution was alleging that incident took place at Sastri lane while the accused pleaded the occurrence having taken place in front of the house of the accused at Mosquie lane. Thus, there were two versions of the occurrence — one put forward by the prosecution and the other by the accused and during trial the version of the accused was found to be correct. With that background this circumstance was held to be causing grave suspicion in the prosecution case.
88. At the cost of repetition the applicability of the aforesaid principle on the basis of the proved facts in the present case is not at all called for.
89. In the case in hand the occurrence took place on 17th August, 1990 between 7.00 and 8.00 in the morning. The place of occurrence is a motorable road. The spot for the first time was visited by the I.O. after recording the FIR in the evening of the day of occurrence. The likelihood of blood having been damaged or having vanished on account of traffic could not be ruled out inasmuch as the place of occurrence after the incident was not secured at all as the police went into action only after the recording of the FIR, that is, in the evening of 17th August, 1990 and the persons interested were all shocked and busy for saving the life of the deceased. In this view of the matter the absence of blood at the spot stood legally explained and cannot be taken as a circumstance creating doubt in the prosecution evidence inasmuch as eye witnesses’ credibility of describing the occurrence connecting the accused persons with the same cannot be disbelieved.
90. It has been submitted on behalf of the appellants that FIR in this case was lodged after due deliberations and the possibility of the accused persons being falsely implicated on the basis of enmity could not be ruled out. We think such an inference on the basis of the proved facts on record is not at all available.
91. There is no doubt that occurrence took place in the morning of 17th August, 1990 but the FIR was lodged by recording the statement of Smt. Satya Devi wife of deceased Dilavar under Section 154 Cr.P.C. in between 4.00 and 4.30 P.M. on the day of occurrence in the village. It has come in evidence that at that time Dilbag Singh was still at PGI Chandigarh and it cannot be said, under the circumstances, that Dilbag Singh or his mother Smt. Jai Kaur after due deliberations on account of enmity, falsely implicated the accused persons. It may not be out of place to mention here that not only the information but other close relatives of the deceased and the other witnesses who had seen the occurrence were busy in providing some medical treatment to the injured as his condition was said to be quite critical. With this background it cannot be said that the informant alongwith her mother-in-law and brother-in-law Dilbag Singh manipulated in a manner so as to falsely implicate the accused persons. In a case of the present nature where close relatives were involved there was every likelihood of their being giving information to the police in such a manner so as to exclude minute details of the occurrence and other facts concerning the incident.
92. The FIR was under Section 307, IPC and at the time when it was so made the informant was not in the knowledge of the death of the deceased which fact was known to the police after the recording, of the FIR, as has come in the statements referred to above. In this view of the matter the delay in lodging the FIR stood explained through the circumstances proved on record. There is also absolutely no dispute that while going to Nangal Mehatpur Police Post comes in the way where report could be lodged but as referred to earlier it was not probably done as everybody was busy to provide medical treatment to the deceased in order to save his life. This is the natural human conduct.
93. It has also been brought to the notice of this Court that Dilbag Singh, the brother of the deceased, and Roshan Lal Pradhan Panchayat were witnesses to the inquest Ex.PK and they did not disclose the details of the occurrence and even they did not name the accused persons to the Police Officer who prepared the inquest report which reflected that the inclusion of the name of the accused persons was an after thought.
94. Admittedly, as per prosecution case neither Dilbag Singh nor Roshan Lal PWs were the persons who had seen the occurrence. Their knowledge of the occurrence was not first hand but derived on the basis of the information given to them by the witnesses who had seen the occurrence. In this view of the matter the absence of the details of the occurrence connecting the accused persons with that in the inquest report will not, in any manner, create doubt, more so to be a circumstance for falsely implicating the accused persons with the alleged occurrence.
95. It has been contended that Roshan Lal Pradhan Panchayat stated about the dying declaration and, as such, he could have informed the police about the occurrence at that time. We think the proof of dying declaration tendered during the trial is of a very weak nature inasmuch as, according to the doctor, the deceased was not in a position to make a statement and on account of the injection given to the deceased he was not in his proper senses. This type of evidence has been rightly rejected by the trial court but that docs not mean that whatever this Roshan Lal deposed was altogether false inasuch as in a criminal trial even statements of witnesses, who are not totally reliable, can be acted upon where they are corroborated by other reliable evidence.
96. Regarding the eye witnesses the sole attack has been their inimical relations with the accused. In so far as the widow of the deceased was concerned, it could be said that she was not having normal relations with the accused persons but again such a strained relation in a criminal trial is always a double edged weapon. It could be the motive for the accused persons to commit the offence or it could be the ground for falsely implicating the accused persons. In this case as the evidence has been dealt with and discussed above, it cannot be said on any ground whatsoever that the widow of the deceased in collaboration with her mother-in-law and brother-in-law falsely implicate the accused persons for committing such a ghastly act.
97. In so far as the other eye witnesses are concerned, the enmity has not been proved at all. The suggestions in this regard put to these witnesses have been denied by these witnesses. The other two eye witnesses appear to be most natural and independent one. The version given by them cannot be brushed aside. Some discrepancies and even contradictions occurring in their statements will not discredit their testimony especially when, as referred earlier, at the time when they were examined during investigation every detail of the matter could not be, in a natural course, given by them though they have been all unanimous in connecting accused persons with the alleged occurrence.
98. Much has been said to assail the version given by the relative witnesses Pw11, Gurmej Singh and PW 4 Nagina Singh. During cross-examination an effort has been made to make them inimical towards the accused persons but that fact has not been established. These two witnesses were equally related to the parties and it cannot be said why they were siding with the complainant and not with the accused, in a natural human conduct a close relative generally speaks the truth and does not implicate another relative unless and untill there are some specific reasons to behave in that manner. In the present case the version given by these two witnesses, to whom the accused persons met just after the occurrence, cannot be ignored and taken lightly.
99. It has also been argued that the version given by the prosecution witnesses about the occurrence does not appeal to reasoning and cannot be said to be the natural conduct of a human being especially when the deceased who was driving the vehicle himself when noticed the accused persons armed with weapons could easily fied away by driving the car and it appeared to be most unnatural to stop the vehicle in the manner it has been described. Again, this circumstance if f otherwise taken, can explain the conduct of the deceased in a natural manner. There is no doubt that the deceased and the accused persons were having strained relations and such relations continued for sometime prior to the occurrence. There is nothing in the prosecution case that prior to the occurrence any physical violence exchanged between the parties. With that background and the accused being the real brother and nephews of the deceased, the deceased could never anticipate that they would be behaving in that criminal manner. There is no doubt that the deceased had been threatened by one of the accused in the morning but again such threats between the brothers and nephews over disputes pertaining to the landed property are very much common and natural but do not end in giving fatal injuries to one of the parties. With that background the natural behaviour was to stop the vehicle when it was got stopped by the accused persons who happened to be nobody else but blood relations of the deceased.
100. The prosecution evidence, particularly of the eye witnesses, has been assailed for their parrot like version with respect to the injuries inflicted by each accused with a particular weapon. We think the version given by the eye witnesses is not at all a version given parrot like. There has been some discrepancies and even contradictions pointed out in the version given by them. All the witnesses have connected the accused pev as with specific injuries inflicted by a particular’ accused person with a particular weapon. In case there had been any variation in the version given in this regard by the eye witnesses, it could have been easily submitted that this variation was sufficient to create doubt in the prosecution case. Thus, with this context it can safely be said that all the eye witnesses have been unanimous in their version while describing the occurrence connecting the accused person with the same.
101. The photographs have been brought on record which also supports the version of the eye witnesses.
102. Last but not the least, the statement of mother of the deceased and one of the accused, PW 3 Smt. Jai Kaur has also been assailed on the ground of her strained relations with the wife of one of the accused. The mother in her natural conduct behaves equally with all her sons unless and until any son was having strained relations with the mother of such a degree which could force the mother to be against that son who was having strained relations with her but it cannot be said on any score whatsoever that such a mother having strained relations with a son would go out to falsely implicate that son in a murder case. In the present case there is nothing on record to suggest even remotely that PW 3. Smt. Jai Kaur was having strained relations with accused Joginder Singh and his wife which had come to a point of no return. She stated that accused Joginder Singh and his wife did not serve her but that did not mean that she would falsely implicate Joginder Singh accused in the manner she is being assailed before this court. For the mother both the sons involved in the occurrence were equal. The version given by her is most natural and speaks of truthfulness which aspect has to be legally accepted.
103. Thus, the evidence examined during the trial clearly and specifically connected all the accused persons with the alleged occurrence.
104. The trial court convicted accused Joginder Singh, Balwinder Singh and Jagtar Singh appellants in Criminal Appeal No. 4 of 1992 under Section 302/34, IPC but acquitted Bajinder Singh accused who is respondent in Criminal Appeal No. 277, of 1992, preferred by the State. The trial court’s reasons for the acquittal of Bajinder Singh were recorded in paragraph 25 of the judgment which is reproduced hereunder:
25. However, accused Bajinder Singh has to be given the benefit of doubt, which is reasonably available to him in the circumstances of the case. No doubt, the above circumstances have been also established against Bajinder Singh. It has been established that Bajinder Singh was present at the place of the occurrence and he too was armed with Lathi (Ex.P4). It has also been established that Bajinder Singh too had inflicted some Lathi blows on the deceased. Nevertheless, it has to be noticed that the major and serious injuries, which were found on the body of Dilavar Singh and had resulted into his death, have been caused by the individual accused, as per eye witness account supplied by Smt. Satya Devi, Shri Piara Singh and Kewal Krishan. The incised wound on the abdomen of Dilavar Singh was caused by Balwinder Singh with Takua (Ex.PI) whereas two injuries on the chest of Dilavar Singh were caused by accused Joginder Singh with Barchha (Ex.P2). Forehead injury to Dilavar Singh has been caused by Jagtar Singh with Gandasi (Ex.P3). Thus, no serious injury has been found on the person of Dilavar Singh which could have been caused by a blunt weapon like lathi (Ex.P4). Therefore, individually, Bajinder Singh cannot be held guilty of causing any serious injury to Dilavar Singh. In the absence of any significant participation in causing injuries to Dilavar Singh, Bajinder Singh cannot be held guilty constructively for causing murder of Dilavar Singh with the aid of Section 34 of the Indian Penal Code. The prosecution has not been able to bring on record the immediate and direct cause for which the accused persons have caused the death of Dilavar Singh. In that situation, existence of a common purpose or design, in an action with common intention cannot be inferred against Bajinder Singh for the lack of active participation in causing injuries to Dilavar Singh by him. It may be also noticed in this context that Bajinder Singh is son of accused Joginder Singh and younger brother of accused Balwinder Singh and Jagtar Singh. This accused was, therefore, bound to accompany accused Joginder Singh, Balwinder Singh and Jagtar Singh when the latter had inflicted fatal injuries to Dilavar Singh because of his relationship even if he may have actually not intended by himself to cause death of Dilavar Singh. In these circumstances, I shall give the benefit of a reasonable doubt to Bajinder Singh and shall conclude that the offence under Section 302, of the Indian Penal Code in respect of death of Dilavar Singh has not been established against him.
105. We think inferences drawn by the learned Addl. Sessions Judge while acquitting accused Bajinder Singh are not only improper but legally unsustainable also.
106. There is no doubt to the proposition that where the reasoning given by the trial court is contrary to the weight of evidence the appellate court in an appeal against acquittal would be justified in discrediting the same. The present case is of that very nature as the reasons taken into consideration by the trial court in acquitting one of the accused were definitely not only contrary to law but contrary to the evidence examined during the trial.
107. All the accused were charged under Section 302/34, IPC. It is strange to observe that three of the accused persons have been found guilty under Section 302/34, IPC and the fourth has been acquitted after coming to the conclusion that he too had taken part in the occurrence and inflicted stick blows.
Section 34, IPC runs as under:
34. Acts done by several persons in furtherance of common intention. — When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
In order to invoke the provisions of Section 34, IPC the prosecution has to establish common intention of all the accused persons and the manner in which the murder was committed and then alone each of such persons would be liable for the offence of murder. Common intention requires a prior consent or pre-planning. Such common intention should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime was committed. It is difficult to procure direct evidence of such intention. It can be inferred from the proved circumstances. Needless to say, where a common intention of two or more persons to kill the deceased is established, the question as to who gave the fatal blow was wholly irrelevant. Once the evidence established that all the four accused persons had a common intention to kill the deceased which could be manifest from the fact that all those persons were armed with weapons, all participated equally in the actual assault on the deceased, all of them having come together and having gone together. Such established circumstances will leave no room for doubt about the common intention.
108. What happened in the present case is reflected from the evidence examined during the trial. It has come in evidence that this accused Bajinder Singh was armed with lathi while other accused were armed with other deadly weapons stated by the withnesses and all the four accused gave blows to the deceased. The participation in the occurrence of this acquitted accused is fully supported by the eye witnesses that he was carrying a lathi and he also gave lathi blows to the deceased which fact is corroborated by the statement of the doctor, as pointed out above.
109. The learned Addl. Sessions Judge came to the conclusion that this Bajinder Singh accused was also present there and he had inflicted some lathi blows on the deceased. However, the learned Addl. Sessions Judge in the next breath observed that the major and serious injuries which were found on the body of Dilavar Singh deceased and which had resulted in to his death have been caused by individual accused as per eye witness account supplied by Smt. Satya Devi and other witnesses and, therefore, the participation of Bajinder Singh accused was not significant and it cannot be said that he was also having common intention with other accused persons. These inferences definitely go against the purview of Section 34, IPC itself. This Section 34, IPC speaks of common intention which could easily be gathered from the proved circumstances in this case inasmuch as this Bajinder Singh was the person who gave the threat to the deceased. He was the person who accompanied the other co-accused armed with various type of weapons though he was having a lathi in his hand. All the four accused persons at the same time gave blows of the weapons they were carrying, on the person of the deceased and this Bajinder Singh did not lag behind in this particular regard. Purpose of Section 34, IPC is not to judge as to which of the accused had given the fatal blow. Every accused would be responsible for the death in case it was so committed in furtherance of the common intention. In this view of the matter the acquittal of Bajinder Singh is not only illegal but cannot be supported on the basis of the proved circumstances.
110. No other point has been stressed.
111. In view of the aforesaid discussion and scrutiny of the evidence examined during the trial the combined effect of all the proved facts taken together is conclusive in establishing guilt of all the accused persons and conviction of all the four accused persons thus would be legally justified.
112. In view of the foregoing reasons, Criminal Appeal No. 4, of 1992 is dismissed and conviction and sentence passed by the Addl. Sessions Judge against the appellant therein are maintained.
113. However, the acquittal of accused Bajinder Singh is quashed and as a consequence thereof Criminal Appeal 277, of 1992 preferred by the State is accepted and accused Bajinder Singh is also convicted along with appellants in Criminal Appeal No. 4, of 1992 under Sections 302/34, IPC and he is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 200/-. In default of payment of fine, he shall undergo further imprisonment for a period of one month. Accused Bajinder Singh is directed to surrender himself before the trial court to undergo the sentence awarded against him and the trial court is directed to execute the said sentence against Bajinder Singh also without undue delay.