JUDGMENT
N.N. Mathur, J.
1. The instant appeal is directed against the judgment of the learned Additional Sessions Judge No. 2, Sri Ganganagar convicting the appellant Karnail Singh of offence under Section 302 I.P.C. and other appellants namely Khadak Singh, Magh Singh and Gurmukh Singh for offence under Section 302/149 I.P.C. and sentenced each of them to imprisonment for life and to pay a fine of Rs. 1000/- and in default to further undergo one month simple imprisonment. The appellants have also been convicted for offence under Sections 447 & 148 I.P.C. While appellant Karnail Singh has been convicted for offence under Section 27 Arms Act and sentenced to one year rigorous imprisonment the other accused appellants have been convicted for offence under Section 27/149 Arms Act and sentenced each of them to one year rigorous imprisonment.
2. Briefly stated the facts of the case are that on 22nd April, 1987 at about 7:00 A.M. while P.W. 1 Bhadar Khan, deceased Sakhi Mohammad and P.W. 3 Mst. Sarma were working in the field the appellant Karnail Singh armed with 12 Bore Gun, his son Khadak Singh and Magh Singh pistols and Gurmukh Singh and Jagtar Singh 12 Bore Gun arrived. P.W. 4 Khuda Bux and Mohammad Yaar also reached on the scene of occurrence. Karnail Singh asked Bhadar Khan to vacate the land. On this Sakhi Mohammad, Mohammad Yaar and Khuda Bux tried to pacify him. They promised to vacate the possession in event of court case being decided against them. This did not satisfy Karnail Singh and he opened fire at Sakhi Mohammad on account of which he fell down. It is alleged that the other accused persons namely Gurmukh Singh and Jagtar Singh by gun and Khadak Singh and Magh Singh by pistol also opened fire, however, the fire did not hit any body as they concealed themselves in the standing crop. Subsequently the Sakhi Mohammad was dragged and taken under a ‘Kinkar’ tree. P.W. 3 Mst. Sarma proceeded to Sardargarh and informed P.W. 2 Sammu Khan, who in turn went to Suratgarh and informed the police at about 11:30 A.M. The information was entered in the Rojnamcha as Ex.P2A. On the basis of this information P.W. 8 Shri Krishan, S.H.O., Police Station, Suratgarh proceeded to place of occurrence. He recorded the statement of Bhadar Khan vide Ex.P1. He sent the said report with Constable Gurdev Singh to the Police Station, Suratgarh. On the basis of that statement a regular F.I.R. Ex.P4 was chalked out. The police prepared the site plan Ex.P8 and recovered wad pieces vide Ex.P10. The post-mortem of the dead body was conducted by P.W. 7 Dr. Sahi Ram vide Ex.P5. The appellant Karnail Singh was arrested on 24th April, 1987. Jagtar Singh was also arrested on the same day. On 30th April, 1987 a gun was recovered in pursuance of the information given by Karnail Singh. Appellant Khadak Singh was arrested on 12.5.1987 and in pursuance of information given by him one gun and empty cartridges were recovered. Magh Singh and Gurmukh Singh were arrested on 15.5.87. In pursuance of the information given by them the recovery was made on 19.5.87. The articles were sent to the Forensic Science Laboratory on 1.9.1987. After usual investigation, police laid charge-sheet against the appellants and Jagtar Singh.
3. The appellants pleaded not guilty of the charges leveled against them and claimed trial. The prosecution adduced oral and documentary evidence to establish its case. The appellants in statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them. The trial court found the prosecution case proved and as such convicted and sentenced the appellants as already noticed. Jagtar Singh died during the trial.
4. Assailing the conviction, it is contended by Mr. Doongar Singh learned counsel for the appellants that original dispute was with P.W. 1 Bhadar Khan. It is contended that even though the five accused persons alleged to have appeared with fire arms, but strangely no injury has been caused to Bhadar Khan. It is also submitted . that it was the single individual shot alleged to have been fired by Karnail Singh hitting Sakhi Mohammad and as such it cannot be said that all the accused persons constituted an unlawful assembly. It is further pointed out that the fields of accused and complainant are adjacent to each other and possibly the other accused persons might have also reached on the spot, as a spectator of the occurrence. It is submitted that genesis of the occurrence has not been truthfully stated by the prosecution witnesses. It is further argued that all the five persons alleged to have fired but no empty cartridges have been found on the place of occurrence. It is also submitted that while all the accused persons alleged to have fired guns and pistol but there is no injury from their weapon to any of the witnesses or to the deceased. According to the learned counsel the prosecution has fabricated the entire case. On the other hand the learned Public Prosecutor has supported the judgment of the trial court.
5. We have carefully scanned the prosecution evidence and considered the rival contentions. It is not in dispute that Sakhi Mohammad died of homicidal death. P.W. 7 Dr. Sahi Ram stated that he conducted the post-mortem of the dead body of Sakhi Mohammad and noticed following injuries:-
“(1) Lacerated wound (gun shot injury), wound of entrance, 0.2″ in circular (inverted margins) in Right 2nd intercostal space, 1” lateral to mid sternal area. No exit wound. This injury has injured the Right lung and Aorta.
(2) Lacerated wound (gun shot injury), wound of entrance 0.2″ in circular (inverted margins) over left costal margin area.
(3) 14 Lacerated wound (gun shot injuries), wound of entrance 0.2″ in circular (each) inverted margins over anteriorly of abdominal area, causing injuries to the small intestine.
(4) 4 Lacerated wound (gun shot injuries) wound of entrance, 0.2″ in circular (each) inverted margins, over scrotal and penis.
(5) 12 Lacerated wound over anteriorly of right thigh. 13 Lacerated wound over anteriorly of left thigh, all are (gun shot injuries) wound of entrance, 0.2″ circular (each) margins are inverted. Present 2″ below the knee limb up to inguinal region anteriorly.”
In his opinion:-
He died of shock due to internal haemorrhage and cardio respiratory failure followed by gun shot injuries to the right lungs, aorta (ascending) and small intestine.”
6. The entire prosecution case hinges on the ocular evidence of the three eye witnesses namely P.W. 1 Bhadar Khan, P.W. 3 Smt. Sarma and P.W. 4 Khuda Bux. P.W. 1 Bhadar Khan stated that he owns 2 muraba of land in the joint name with his brother Aladad in Chak 239 R.D. There is a land dispute with appellant Karnail Singh. He was having a stay order from the court in his favour. On the date of incident at about 7:00 A.M. while he was working in the field along with deceased Sakhi Mohammad and his sister Sarma the appellant Karnail Singh, Gurmukh Singh, Khadak Singh, Magh Singh and Jagtar Singh arrived. Karnail Singh, Jagtar Singh and Gurmukh Singh were carrying guns in their hands. Magh Singh and Khadak Singh were carrying pistols. Karnail Singh asked them to vacate the land. Sakhi Mohammad responded saying that there was a stay in their favour. They promised to vacate the land in case the case is decided against them. On exhortation by Jagtar Singh Karnail Singh opened fire at Sakhi Mohammad. He fell down. Thereafter, Khadak Singh, Jagtar Singh, Magh Singh and Gurmukh Singh also opened fire. He concealed himself behind the standing crop. At that time Mohammad Yaar and Khuda Bux also arrived. Thereafter the accused persons dragged Sakhi Mohammad to some distance. P.W. 2 Sarma Proceeded to Sardargarh to inform Sammu Khan about the incident. At about 1:30 P.M. police arrived at the spot. In the cross examination he denied the suggestion that the land was earlier in possession of Karnail Singh. He also admitted that there was no enmity of Karnail Singh with Sakhi Mohammad. He also admitted his presence on the spot when Karnail Singh opened fire at Sakhi Mohammad. He concealed himself behind the standing crop after the fire was opened by other appellants. He also stated that he has seen each of the accused persons firing with the respective arms with them. He further stated that the first fire was opened by Jagtar Singh, second by Gurmukh Singh, third by Khadak Singh and fourth by Magh Singh. He also admitted that the accused persons dragged the body of Sakhi Mohammad upto 2-3 Kilas.
7. P.W. 3 Smt. Sarma is the sister of Bhadar Khan. She has stated that on the date of occurrence at about 7:00 A.M. while she was working in the field of his brother Bhadar Khan, accused Karnail Singh, Jagtar Singh, Khadak Singh, Gurmukh Singh and Magh Singh arrived. She has given the account of the incident almost in the line of P.W. 1 Bhadar Khan. She has also stated that she on her own went to Sardargarh and informed her maternal uncle Sammu Khan about the incident. Sammu Khan went to Suratgarh for lodging the First Information Report. In the cross examination she admitted that she had not seen Karnail Singh and Khadak Singh prior to the date of occurrence. She also admitted that when Karnail Singh opened fire at Sakhi Mohammad she along with Bhadar Khan concealed behind the crop. She also stated that Khuda Bux and Mohammad Yaar had arrived at the place of occurrence at about 6 A.M.
8. P.W. 2 Sammu Khan stated that at about 9:30 A.M. Mst. Sarma arrived at his residence and informed about the incident wherein Sakhi Mohammad was being murdered by Karnail Singh and others. He admitted in the cross examination that the police did not record the statement of the witnesses on spot. She stated that statements were recorded on the next day.
9. P.W. 4 Khuda Bux stated that he had gone to the field of Bhadar Khan on the date of incident with a view to get the dispute settled between Bule Khan and Sakhi Mohammad. At about 7:00 A.M. the accused persons armed with fire arms arrived. Karnail Singh and Jagtar Singh asked Bhadar Khan to vacate the field. Sakhi Mohammad came forward and argued with them that there was stay in their favour and they will vacate the land in event of the case being decided against them. On exhortation by Jagtar Singh, Karnail Singh opened fire hitting Sakhi Mohammad, on account of which he fell down. Thereafter, other accused persons opened fire at them. Out of fear they concealed themselves behind the standing crop. In the cross examination, he admitted that Karnail Singh was not known to him prior to the date of incident. There is a lengthy cross examination, but nothing substantial has been elicited to discredit the testimony of this witness.
10. P.W. 8 Shri Krishan is the Investigating Officer. He has stated that Sammu Khan presented himself at the Police Station and gave an oral information to the effect that Sakhi Mohammad has been murdered by Karnail Singh and others. He made an entry of the information in the Rojnamcha vide Ex.P2. He proceeded to the place of occurrence and recorded statement of Bhadar Khan vide Ex.P1. He also stated that he recovered wad pieces of 12 Bore Gun from the place of occurrence vide Ex.P10. He arrested the accused Karnail Singh on 24.4.1987 vide Ex.P12. On 30th April, 1987 Karnail Singh made a discloser statement vide Ex.P15 leading to the recovery of 12 Bore licensed gun and two empty cartridges from his house vide Ex.P12. He also stated that he prepared the recovery memo and sealed the gun on the spot. He has also stated that on 12.5.87 Khadak Singh was arrested. In pursuance of the information Ex.P23 one gun and empty cartridges were recovered vide Ex.P.24. Similarly in pursuance of the information given by Magh Singh vide Ex.P27 a pistol and empty cartridges were recovered vide Ex.P.30. A gun was also recovered with the empty cartridges from Gurmukh Singh vide Ex.P29. In pursuance of the information given vide Ex.P28. The police has led the link evidence to prove that the articles were kept intact till the same were delivered to the Forensic Science Laboratory. The articles were sent to the Forensic Science Laboratory on 1.9.87. The F.S.L. report has been placed on record as Ex.P33.
11. We have carefully scanned the prosecution evidence particularly the statements of the three eye witnesses P.W. 1 Bhadar Khan, P.W. 3 Smt. Sarma and P.W. 4 Khuda Bux. On conspectus of the entire evidence we are of the view that the statement of these witnesses cannot be said to be wholly reliable. We have made an endeavor to filter the evidence to find out as to what extent the statements of the said witnesses is true. As far as P.W. 1 Bhadar Khan and P.W. 3 Smt. Sarma is concerned, their presence on the spot cannot be doubted. The part of statements of both the witnesses to the effect that Karnail Singh opened fire the gun at deceased Sakhi Mohammad finds corroboration from the medical evidence and also the fact that wad pieces were found on the spot. P.W. 3 Smt. Sarma immediately proceeded to Sardargarh and informed about the incident to P.W. 2 Sammu Khan. In the Rojnamcha Ex.P2 except the name of Karnail Singh the name of other accused persons does not find place. Thus, P.W. 3 Smt. Sarma at the first instance has disclosed the name of Karnail Singh to P.W. 2 Sammu Khan. Thus, the core of the prosecution case so far as the fire by Karnail Singh hitting Sakhi Mohammad is concerned, the three eye witnesses cannot be disbelieved. However, as far as the case against other accused persons of forming an unlawful assembly with an object to commit murder of Sakhi Mohammad is concerned, the statements of these witnesses cannot be relied upon. It is stated by the three eye witnesses that after the fire by Karnail Singh the other accused persons also opened fire. This part of the statement does not find corroboration from any other evidence. If the other accused persons had arrived armed with guns and pistols and if they actually fired, it would have certainly hit the persons present in the field i.e. Bhadar Khan, Smt. Sarma and Khuda Bux. It is of course true that a 12 Bore Gun and a pistol have been recovered from the other appellants other than Karnail Singh but it is significant to notice that the Ballistic expert has opined that the misfired cartridges have not been fired from any four submitted 12 Bore Guns and fire arms. Thus, we are of the view that the prosecution has failed to establish the case against the appellants Khadak Singh, Magh Singh and Gurmukh Singh.
12. Before we conclude, we may state the principle of appreciation of evidence to the effect that where the court had given the benefit of doubt to one of the several accused on the same evidence, it cannot be contended that the other accused should also be given benefit of doubt. The Apex Court in Sat Kumar v. State of Haryana (1), held:-
“There is no rule of law that if the court acquits some of the accused on the evidence of a witness raising doubt with regard to them, the other accused against whom there is absolute certainty about his complicity in the crime based on the remaining credible part of the evidence of that witness must be acquitted.”
In the instant case we have found the evidence of the eye witnesses credible as against the first appellant Karnail Singh but not against the other appellants namely Khadak Singh, Magh Singh and Gurmukh Singh for more than one reasons.
13. Consequently, we partly allow the appeal as follows:-
(1) We uphold the conviction of appellant Karnail Singh for offence under Section 302 I.P.C. and sentence of imprisonment for life and to pay a fine of Rs. 1000/-. The conviction and sentence for the allied offences is also confirmed. The appellant Karnail Singh is in Jail. He will serve out the remaining part of the sentence.
(2) The conviction of appellants Khadak Singh, Magh Singh and Gurmukh Singh for offence under Section 302/149 I.P.C. and for the allied offences is set aside. The appellants Khadak Singh, Magh Singh and Gurmukh Singh are on bail. Their bail bonds stand discharged.