Gopal Singh, J.
1.This is appeal by Bhag Singh, Pritam Singh, Mehar Singh and Mundar Singh. Bbag Singh has been convicted Under Section 302, Indian Penal Code and sentenced to death and to pay fine of Rs. 1500 or in de-fault of payment of fine to suffer rigorous imprisonment for two years for the murder of Harbans Singh while Mehar Singh, Pritam Singh and Mundar Singh have been convioted Under Section 302 read wiih Section 34, Indian Penal Code and eaob of them has been sentenced to imprisonment for life and to pay fine of Rs. 500 or in default of payment of fine to further undergo rigorous imprisonment for one year for that murder. For the murder of Basant Singh, Mehar Singh has been oonvicted Under Section 302, Indian Penal Code and sen. tenoed to death and to pay one of Rs 1500 or in default of payment of fine to suffer rigorous imprisonmsnt for two j ears while Bbag Singh,. Pritam Singh and Mundar Singh have been oonvicted Under Section 302 read with Section 34, Indian Penal Code and eaoh of them has been sentenoed to imprisonment for life and to pay fine of Rs. 500 or in default of pay. ment of fine to further suffer rigorous impri. sonment for one year. All the substantive sentences of imprisonment have been directed to run concurrently. One moiety of the fine, as and if recovered, from the various appellants has been directed to be paid to tbe heirs of both the deceased. Murder reference is also before us for confirmation of the death sentences of Bhag Singh and Mehar Singh.
2. The facts of the prosecution case are as under:
Bhag Singh and Fritam Singh are brothers. They are sons of Atma Singh. Mehar Singh is their partisan. They are residents of village Gholia Khurd. Mundar Singh is the son of sister of Bhag Singh and Pritam Singh. He is resident of village Bargari. The two deceased are also residents of village Gholia Ehurd. They are tons of Maghar Singh. They resided together with their mother Smt. Aas Eaur. Their house is contiguous to the house of Bhag Singh and Pritam Singh.
On account of dispute over land between Mehar Singh appellant and Gurdev Singh brother of Maghar Singh, the relations between Gurdev Singh and Mehar Singh became strained and security proceedings had to bs initiated against Gurdev Singh and others on the one hand and Mehar Singh appellant and his brother Mukhtiar Singh on the other. The deoeaBed were supporting Gurdev Singh.
On September 6, 1969, the appellants were sitting on the roof of the house of Bhag Singh. They started taking liquour at 5 p.m and continued till 7 p. m. Bhag Singh was armed with a 12 bore single barrelled licenced gun. Mehar Singh was also armed with a 12 bore single barrelled gun. Pritam Singh was having a spear in his hands while Mundar Singh carried a dang. The deoeased and their mother were present in the court-yard of their house. While in drunken state, the appellants started throwing gargles in the court-yard of the bouse of the deoeased. One of the gargles fell on Harbaus Singh deceased. Both the deoeased objected to that type of behaviour of the appellants and told them not to throw gargles into their court-yard. The appellants Game from their roof to the roof of the kitohen in the houee of the deceased and hurled abuses. Hearing noisy dialogue between the deceased and the appellants, Jarnail Singh and Surjit Singh, neighbours of the deoeased, came into the court-yard of the house of the deceased.
The two deceased asked the appellants to go away to their own house. Upon this, Bhag Singh fired a shot with his gun. It hit Harbans Singh on his right thigh. Harbans Singh fell down. When Basant Singh was about to lift Harbans Singh, Pritam Singh Mundar Singh and Bhag Singh raised lalkara Baying that Basant Singh should not be allowed to esoape. Mehar Singh then fired a shot with his gun hitting Basaut Singh on his back. Thereafter, the appellants ran away. On being informed of the occurrence, Lachhman Singh Sarpanch and Bant Singh Panoh arrived in the oourt-yard of the house of the deceased and saw them lying injured. Both the deceased in that injured condition accompanied by Smt. Aaa Eaur were carried in the tractor of Pritam Singh to Bagha Purana. The deceased, however, suocumbed to the injuries on the way. Report of the occurrence was lodged by Smt. Aas Eaur at 10 p. m. at Police Station, Bagha Purana. The distance between the Police Station and the village of ocourrence is 7i miles.
After preparing the inquest reports and injury statements of the deoeased, their bodies were sent for pout mortem examination to the Civil Hospital at Moga. Bahal Singh, Sub. Inspector proceeded to the place of occurrence. He colleoted blood-stained earth from the court-yard of the house of the deceased. He also secured three empty-cartridges. Exhibits P. 13-1-3 lying on the toof of the house of Bhag Singh close to the side to the house of the deoeased. Memo pertaining to the former is Exhibit P. N. while thai; relating to the latter is Exhibit P. Q Both are attested by Jarnail Singh and Jai Singh. .
The bodies of the deoeased and the aocom. panying inquest reports and the injury statements were reoeived in the Civil Hospital by Dr. Section 0. Garg at 6.30 am, on September 7, 1969. On examination of Harbans Singh deceased at 8 25 p.m. on that day, he found one gun shot wound on the right thigh 8' from the anterior superior iliao ppine with a oentral wound having dimensions of l' x lj' with multiple pellet wounds around it in an areas of 7' x 12', He perceived the presence of one pellet under the skin on the posterior aspect of the thigh. He reoovered two wads, one circular and the other corrugated and a piece of cloth from the central wound. He notioed the femoral vessels lacerated upto length of 2' apart from extensive laceration of muscles and tissues in the region of the wound. He found pallor of traohea and the pallor of right lungs. The chambers of the heart were empty and the stomach was full of food and water with very early stage of digestion. He gave the opinion that the death of the deceased occurred due to shock and haemorrhage because of laceration of femoral vessels caused by gun shot injury.
On the same day, there was performed the post-mortem examination of Basant Singh deoeasad. The doctor noticed multiple pellet wounds on the back of the right chest upto iliao crest and across the mid.line extending to the lumbar region over an area of 13' X 10', The pellet wounds were probed deep down. He noticed 8th, 9th and 10th ribs of the right Bide of the chest fractured and pleural adhe. aions on the left eide, The right pleura was injured with pellets. There were observed eight pellet wounds on the back and lower part of the right lung. The right auriole of the heart had small amount of blood. Some pellets were notioed, lodged in the posterior aspect of the anterior abdominal wall with corresponding wounds. Perforations were notioed in ihe peritoneum and in small and large intestines. Liver was extensively lacerated. Two pellets were found lodged in the spleen causing pellet wounds. Right kidney had multiple pellet wounds with dots. The doctor gave the opinion that the oause of the death was haemorrhage and shook due to the gun-shot injury suffered by the deceased and oausing damages to the internal viecera.
Bhag Singh and Mundar Singh were arrested ' on September 11, 1969. When apprehended, Bhag Singh carried on his person gun Exhibit P. 12. It was taken into possession. Memo pertaining to its reoovery is Exhibit P. L. Pritam Singh and Mehar Singh were arrested on September 21, 1969. The gun and the three empty cartridges were sent for examination and test to the Ballistic Expert at Ohandi. garb on September 26, 1969. Shri J. K. Sinha, Assistant Director, Forensic Science 'Laboratory, Chandigarh gave the opinion that the three empties had been fired from gun - Exhibit P. 12 reoovered from Bhag Singh.
3. At the trial, the oaae of the prosecution was supported by the testimony of Srat. Aas Kaur P.W. 12, Surjit Singh P.W. 13 and Jarnail Singh P.W. 14 as eye-witnesses, re-ooveries and the medical evidence.
4. In their statements Under Section 342, Criminal Procedure Code, the appellants denied the allegations of the proaeoution and pleaded that they had been falsely implicated oat of enmity.
5. Shri Dara Singh appearing on behalf of the appellants has contended that the three eye-witnesses are interested witnesses and are not truthful and reliable witnesses and thai; in any case Vehar Singh and Mundar Singh have been falsely implicated, that the applicability of Section 34, Indian Penal Code cannot be attracted in respect of Pritam Singh and Mundar Singh appellant? and that sentences of death awarded against Bhag Singh and Mehar Singh are not called for.
6. Both the deceased are real brothers. The ooourrence took place in the court.yard of their house by the appellants firing from the roof of the kitohen in the house of the deceased. The mother of the deceased was living with them in that house. She is a natural witness. Nothing has been shown to suggest that she could not have been present at the time of occur- rence Between the house of the deceased and the house of Jarnail Singh P.W., there is only the intervening house of Bhag Singh appellant. The house of Surjit Singh P.W. is situate at a distance of 13 kararaa from the house of the deceased. Thus, both Surjit Singh and Jarnail Singh P, Ws. are proximate neighbours. There is nothing unlikely in their hiving been attracted to the oourt.yard of the house of the deceased on hearing the noise due to altercation of wordy dual that preoeded the shots fired at the deceased. Apart from Harbans Singh deoeased having dissuaded the appellants not to throw gargles on the roof of their kitohen and into the court yard of their house and having asked the appellants to go back to their own house, these witnesses have stated that they also persuaded the appellants to go back to their house and to desist from the unbecoming type of behaviour, in which they were indulging.
It was in the presence of Smt. Aas Kaut P.W., mother of the deceased and these two witnesses of undoubted presence that at first Bhag Singh fired at Harbans Singh and later on Mehar Singh fired at Basant Singh, when the latter tried to lift the body of bis brother, injured as a result of the shot fired by Bhag Singh with his gun and Bhag Singh, Pritam Singh and Mundar Singh gave exhortation to Mehar SiDgb saying that Basant Singh too should not be allowed to escape. On being instigated by the exhortation of the other three, Mehar Singh fired a shot with his gun at Basant Singh deceased. He too dropped down there. Taking into consideration that these three witnesses were quite natural witnesses, the learned Counsel for the appellants did not contest the faot of their preeenoe at the time of ocourrenoe in the oourt-yard of the house of the deceased. He, however, contended that considering the circumstance that the dispute orer the land was between Gurdev Singh unole of the deoeased and Mehar Singh appellant and that Mundar Singh, although the son of the sieter of Bhag Singh and Pritam Singh, is not a resident of the village, both of them could have been falsely implicated.
He has relied upon the statement of Surjit Singh P.W., when he Bays that prior to the commencement of consumption of liquor at 5 p. m. by the appellants on the roof of the house of Bbag Singh, they were seen by him passing along the lane in front of his house and that at that time Mundar Singh was only armed with a gun while the others were not armed with any gun and that at that time they carried bottles of liquor. The Counsel strongly relies upon both the ciroumstanoe of previous enmity between Gurdev Singh and Mehar Singh followed by cross-security pro. ceedings and the presenoe of only one gun in the hands of Mundat Singh, which ia said to have been used by Bbag Singh at the time of the occurrence, for false implication of these two appellants. So far as the dispute 'over land and the cross-security proceedings are concerned, Smt, Aas Kaur P.W. may be an interested witness. All the same, her presence at the spot is unimpeachable and she is a natural witness. Nothing was elicited from her in course of cross-examination to sugest that she could not have been present at the time of occurrence. The report of the occurrence, which took place at 7 p. m. was made by her at 10 p. m. at Polioe Station, Bagha Purana at a distanoe of 7} miles. In that report, the names of all the four appellants are specifically mentioned.
The names of the three witnesses including heraelf are also referred to. There is specific reference to the throwing of gargtea by the appellants into the oourt-yard of the house of the deceased and the altercation that ensued consequent upon that mischie7ous behaviour of the appellants- There is specific mention of the three appellants other than Bhag Singh, who was the first to fire at Harbans Singh deceased, giving instigation to Mebar Singh appellant not to spare Basant Singh deceased, who hud just then lifted his injured brother after he had been shot at by Bhag Singh appellant. The entire prosecution version finds apeoifio mention in the body of the first information report lodged so promptly. Copy of that report was received by the Illaqa Magistrate at 12.30 a.m. on September 7, 1969.
Thus, the oopy of the first information report so promptly lodged was within the bands of the Magistrate concerned within 2J hours of the time when report was lodged. Frompt lodging of the report followed by prompt despatch of its copy to the Magistrate eliminates the chances of any time having been utilised to spin out false story and to introduce the names of the fake eye-witnesses. The version of the prosecution oase as incorporated in the first information report has been consistently stuck by all the three eye. witnesses at the trial.
7. Surjit Singh and Jarnail Singh Pi W.s being close neighbours of both Bbag Singh and Pritam Singh appellants and of the deoeased are natural witnesses. They have in no way been found to be connected with or specially interested in the deoeased or in any way inimically disposed towards any of the appellants. Both of them are not only natural witnesses but also disinterested ones. There is no reason why they should falsely implioate any one of the appellants. Jarnail Singh P.W. ia first oousin of Bhag Singh and Pritam Singh appellants. There is no reason why he in particular should rope in either these two appellants, near collaterals as they are, or implicate their nephew Mundar Bingh or their partisan Mehar Singh, especially when there is nothing to point out that he had any axe to grind against them by giving evidence as an eyewitness.
8. Gun Exhibit P. 12 was reoovered from the person of Bhag Singh on September 11, 1969, when he was taken in custody by the polioe. Memo pertaining to its reoovery is Exhibit P.L. It iB attested by Joginder Singh and Pritam Singh. Joginder Singh has ap-peared as a witness, The recovery has been proved by Gurnam Singh, Assistant Sub-Ins-peotor, who soribed it and by Joginder Singh P.W., who attested it. Joginder Singh has in no way been found to be either related to oi connected with the deoeased or in any way hostile to any of the appellants. T
9. Neither the genuineness of the reooveries of the empties from the roof of the house of Bhag Singh nor the reoovery of gun Ex. P. 12 from the person of Bhag Singh at the time he was apprehended has been challenged on behalf of the defence nor the correctness of the opinion given by the Ballistic expert has been challenged on its behalf. It has, however, been urged by Shri Dara Singh, oounsol for, the appellants that according to the statement given by Shri J. K, Sinha, Assistant Director, Forensio Science Laboratory, Chandigarh P.W. 20, who examined and tested the three empty cartridges, Ex. P. 13/1-3 reoovered from the roof of the house of Bhag Bingh appellant, they were fired from gun, Ex. P. 12 used by Bbag Singh appellant and that no empty, cartridge has been recovered used in the gun, with which Mebar Singh appellant was armed and with which, according to the evidenoe of the eye-witnesses, he fired one shot at Basant Singh deceased. The question of reoovery of empty cartridge dropped from the gnn of Mebar Singh appellant will arise only, if there is evidence to show that after Mehar Singh fired his shot at Basant Singh deoeased, he emptied his gun. It is nowhere stated by any of the eye-witnesses, and no suoh question was asked from them in course of their orosB. examination, that after Mehar Singh had fired his shot, he emptied the gun.
All the three eye-witnesses have nnani. i mously stated that after two shots had been fired and the appellants were about to retreat, they fired in the air. It is not specified by any of the witnesses that any shot was fired by Mehar Bingh appellant after the two deceased had been fired at and the appellants were retreating. It is obvious that according to the opinion given by Shri Sinha, all the three empties dropped down on the roof from the gun in the hands of Bhag Singh and none from the gun in the hands of Mehar Singh, No doubt could be oast upon the voracity of the eye-witnesses simply because the three empties recovered from the roof of the house of Bhag Singh have been found to have been fired from the gun in the hands of Bhag Singh and none from the gun with which Mehar Singh fired. The recovery of the three empty cartridges found to have been fired from the gun, with which Bhag Singh appellant was armed, in no way oaafcs doubt upon or jeopardises the veraoity of the three eye witnesses.
The recovery of these oartridgea is quite oonformable with the three consistent state. ments made by the eye-witnesses in general terms by stating that two subsequent shots were fired in the air by the accused without in any way having specified as to whether any shot was fired by Mehar Singh from his gun, with which he was armed
10. There is no doubt about the applioabi. lity of Section 34, Indian Penal Code, in the pre. sent case. The evidence of the three eyewitnesses leaves no doubt that all the four appellants were present on the roof, that all of them oommitted the mischief of throwing gargles on the roof of the kitohen of the house of the deoeased and in their courtyard after they had consumed liquor for couple of hours and that Bhag Singh armed with the licensed gun of Mundar Singh and Mehar Singh armed with an unlicensed gun along with the other two accused oame down from the roof of the house on the roof of the kitchen of the deoeased at a lower level than the roof of their house. At first, Bhag Singh took aim with his gun at Harbana Singh deoeased and later on on the exhortation of the other three appellants, when Basant Singh deceased was seen lifting his injured brother after a Bhol had bean fired at him by Bhag Singh, Mehar Singh was exciter] to trouble and fired his shot at Basant Singh deoeased. That fact bag been stated not only in the firat information report, (he earliest opportunity when Smt. Aas Eaur P, W. had to state it but also un. animously by all the three eyewitnesses at the trial saying that the three appellants other than Bhag Singh instigated Mehar Singh appellant, who was at that time armed with his gun, by saying that Basant Singh deoeased, who was trying to lift his injured brother, should not be allowed to escape. Their ex. hortation ooupled with the previous conduct in concert does bring them within the olutoh of Section 34, Indian Penal Code.
11. Dr. Section 0. Garg P.W. 1, who performed the post-mortem examination of both the deceased, gave the opinion that the gun-shot injuries on their persons, which had caused serious damage to vital viscera of both the deoeased, as detailed in the earlier part of the judgment, were sufficient in the ordinary course of nature to cause their deaths. Pri-tam Singh and Mundar Singh have been leniently dealt with by being sentenoed to imprisonment for life.
12. In view of the fact that both Bhag Singh and Mehar Singh intentionally caused death of both the deoeased by firing with guns on legitimate protest lodged by Harbans Singh deceased against their misconduct of throwing gargle on the roof of his kitchen and into the court-yard of his house, they showed soanty regard for behaviour as law abiding citizens and acted brutally. Instead of realising their mistake of unbeooming conduct, they made both tbe deceased as the target of their aim. It is the two shots fired by these two appellants, which cost the deoeased their lives. There is every justification for the sentanoes of death being awarded to them. It is a fit oase, in which the sentenoes of death deserve to be oonfirmed.
13. In the result, the eppeal is disallowed. The convictions and sentenoes of all tbe appellants are maintained and sentences of death against Bhag Singh and Mehar Singh are confirmed. As directed by the trial Court, one moiety of the fine, as and if recovered, will be paid to the heirs of both tbe deoeased
A.D. Koshal, J.
14. I agree.