S.S. Byas, J.
1. By his judgment dated April 2, 1979 the learned Sessions Judge, Ganganagar convicted & sentenced the accused appellants as under:
S. No. NAME OF THE ACCUSED Offence Sentenceawarded1. Malsingh (i) 302 IPC Imprisonmentfor life(ii) 307/34 Seven yearsrigorous imprisonment(iii) 27 of the One year's Arms Act rigorousImprisonment2. Gittansingh (i) 302/34 IPC Imprisonmentfor life(ii) 307 IPC Seven years R.I.(iii) 27 of One year's R.I.the ArmsAct.
The sentences were directed to run concurrently.
2. The incident is alleged to have taken Place at about 9.30 A.M. on September 23, 1977 in village Thandewala P.S. Gajsinghpura district Ganganagar in which two persons viz. Prakash Singh and Jernel Singh were gunned to death and one namely PW 1 Rajasingh was severely injured by a pistol shot.
3. Succinctly stated, the prosecution case is that the victims and the accused-appellants are closely related inter se. The grand fathers of the two accused-appellants and PW 1 Rajasingh were real brothers. The mothers of accused Malsingh and PW 1 Rajasingh are also the real sisters PW 4 Bikarsingh is the real brother of accused Gittan Singh Accused Malsingh is the son of the real uncle of accused Gittansingh that is to say their fathers are also real brothers inter se. Smt. Basant Kaur is the real sister of PW 4 Bikarsingh and accused Gittansingh.
4. PW 4 Bikarsingh executed an agreement Ex. P 1 on February 21, 1977 in favour of PW 1 Rajasingh to sell his 7.5 Bighas of agricultural land for a sum of Rs. 24,500/- and delivered the possession to him Accused Gittansingh thereafter got a deed of relinquishment (Ex. P 2) from Smt Basant Kaur in his favour for two Bighas of agricultural land out of the aforesaid 7.5 Bighas. A day prior to the occurrence, PW 1 Rajasingh was levelling his aforesaid 7.5 Bighas of agricultural land. Accused Gittansingh and Malsingh went to him in the field and asked him to leave it Rajasingh left the field and convened a Panchayat to resolve the dispute. The deceased victim Prakashsingh and PW 4 Bikarsingh were also present there in the Panchayat. Prakashsingh is the real brother of PW 1 Rajasingh Prakash Singh and Bikar Singh asked the accused Gittansingh to give two Bighas of land (of which he had sought the deed of relinquishment from Smt. Basant Kaur) to Rajasingh. Accused Malsingh and Gittansingh asked for time to think over the matter and to express their view on the matter next morning which was September 23, 1977, the Panchayat again assembled at the Panchayat Bhawan The Panchayat Bhawan is situate not far from the house of PW 1 Rajasingh. Many persons including the accused-appellants assembled there. When the members of the Panchayat asked accused Gittansingh, he expressed his unwillingness for any decision. The Panchayat dissolved, leaving the parties to do what they thought proper. Accused Malsingh and Gittansingh started speaking loudly and grappled with PW 1 Rajasingh and Bikarsingh. The members of the Panchayat intervened and separated them. PW 1 Rajasingh, PW 4 Bikarsingh, the deceased-victim Prakashsingh and others came to their house and stood outside The accused-appellants went to their house. After 5 or 10 minutes both the accused-appellants came with fire-arms. Accused Malsingh had a 12 bore S.B.B.L. gun while accused Gittansingh had a 12 bore pistol. Both the accused gave a Lalkara. Thereafter accused Malsingh fired a shot from his gun at Prakash Singh. The shot hit him on his chest and shoulders Prakash Singh fell down. PW 1 Rajasingh went to help his brother Prakash Singh. Accused Gittansingh fired a shot from his pistol at Rajasingh which hit him on his right hand. Accused Malsingh again fired a shot at Jernelsingh which bit on his abdomen and right hand. Jernel Singh also fell down. The accused-appellants thereafter went away. Prakashsingh succumbed to the injuries then and there. PW 1 Rajasingh went to the Police Station Gajsinghpura and verbally lodged report Ex. P 3 of the occurrence at about 10.15 A.M. on the same day. The police registered a case and proceeded with investigation. The injured victims Jernelsingh and PW 1 Rajasingh were taken to General Hospital, Ganganagar for treatment. The injuries of Rajasingh were examined on that very day by PW 6 Dr. B.M. Chaudhary the then Medical Officer Incharge, Government Dispensary, Padampur. He found the following injuries on his person:
(1) An oval lacerated wound of entrance with slight blackening at the margins antero-posteriorly downwards 1/2' x 1/2' x 1-1/4 medial side of right arm upper half
(2) Bruise with abrasion 1.5' x 1' lateral side of the right forearm.
5. Injury No. 1 was caused by some fire-arm. The injury report is Ex. P 22. On X-ray examination, two large and few small radius opaque metallic shadows in the middle 1/3rd of right arm were found. The report of X-ray finding is Ex. P 20. The injuries of Jarnail Singh were also examined on that very day at Ganganagar by PW 2 Dr. Rajandra Kumar, the then Medical Jurist. The doctor noticed the following injuries on his person:
(1) Gun shot wound size 3/4' x 1/2' x deep muscle x deep muscle 1/2' above the elbow joint on the anterior aspect of the right upper arm
(2) Gun shot wound size 1/2' x 1/2' x muscle deep just above and medial to injury No. 1
(3) Gun shot wound 1/2' x 1/4' x muscle deep 2.5' above the medial epicondyle on the medial aspect of the upper arm of the right side
(4) Gun shot wound 3/4' x 1/3' x muscle deep just above and posterior to injury No. 3
(5) Gun shot wound 1/4' x 1/4' x muscle deep 3/4' below elbow joint on the anterior aspect of the right forearm
(6) Gun shot wound 3/8' x 1/4' x muscle deep below and medial to injury No. 5.
(7) Gun shot wound 3/4' x 1/2' x muscle deep 5-1/2' below the right elbow joint on the posterior aspect of the forearm.
(8) Gun shot wound 3/4' x 1/2' x muscle deep below and lateral of to injury No. 7
(9) Gun shot wound 3/4' x 1/2' (not probed) the posterior aspect of the elbow joint
(10) Gun shot wound 3/8 x 1/4' (not probed) just above the right iliac crest.
The injuries were caused by some, firm arm. The fractures of the bones of the right arm and forearm were also detected. The post mortem examination of the dead body of Prakash Singh was conducted on that very day by PW 6 Dr. B.M. Chaudhary. He noticed the following injuries:
(1) Lacerated wound (round) of entrance with blackening at the margins antero-posterior direction laterally 1/2' x 1/2' upto posterior wall of the thorax just below lower end of the sternum. Injury was grievous by fire-arm
(2) Lacerated oval wound of entrance with blackening at the margins antero-posterior direction laterally 1/3' x 1/3' upto posterior wall of the thorax between 7th and 8th rib anteriorly in the line of the right nipple. Injury was grievous by firearm
(3) Lacerated oval wound of entrance with blackening at the margins antero-posterior direction with fracture of upper end of humerous 1/3' x 1/3' x 2-1/4 anterior side of the left shoulder joint injury was grievous by firearm
(4) Lacerated oval wound of entrance with blackening at the margins antero-posterior and lateral direction 1/3' x 1/3' upto wound of exit 2' below the clevical right in the line of medial 2/3 and lateral 1/3rd. Injury was grievous by firearm.
(5) Lacerated irregular wound of exit 3/4' x 1/2' x wound of entrance in anterior wall of the right axilla. Injury was grievous by firearm
(6) Lacerated oval wound of entrance with blackening at the margins antero posterior direction 1/3' x 1/2' upto wound of exit 1 1/2' below elbow joint right anteriorly and anteromedially. The injury was simple by firearm.
(7) Lacerated irregular wound of Exit 1/2' x 1/2' x upto wound of entrance poster-medial side of the right forearm. The injury was simple by firearm.
Thorax--7th and 8th ribs of right side fracture posteriorly. Pleurae covering the right lung lower lobe torn at two points. Right lung lower lobe punctured at two points.
Abdomen--Liver was found ruptured. The deceased should have died within 24 hours of examination- The cause of his death was gun shot injuries to the liver and right lung causing internal excessive haemorrhage, shock and syncope.
6. According to Dr. Choudhary, the cause of death of Prakash Singh sun shot injuries to the liver and right lung causing internal excessive haemorrhage, shock and syncope. He was further of the opinion that the injuries found on the victim's dead body were sufficient in the ordinary course of nature to cause death. The post mortem examination report issued by him in Ex. P. 23. Jarnailsingh despite operation and treatment did not survive and passed away at 12.05 P.M. on September 26, 1977 in General Hospital, Ganga Nagar. The autopsy of his dead body was conducted by Medical Jurist Dr. Rajendra Kumar (PW 2). Six pellets were recovered from the abdominal cavity and right arm. Out of which two pellets were recovered from pelvic region which were burned in right iliac bone and right sacro-iliac joint. Four pellets were recovered from the right forearm, out of which one pellet was present in the bone of the right ulna. In the opinion of Dr. Rajendra Kumar the cause of death of Jarnail Singh was shock as a result of haemorrhage and multiple injuries mentioned in report Ex. P 8. The post mortem examination report issued by him is Ex. P. 10.
7. As the SHO was out of the headquarters, the investigation wasconducted by ASI, Tara Chand (PW 7). He visited the spot & prepared the inquest report of the dead body of Prakashsingh. He also collected somepellets of a cartridge lying there. The blood stained clothes of the victimswere also seized and sealed. Both the accused persons were arrested on September 25, 1977 by the Station House Officer Jai Bhagwan (PW 8). Accused Mal Singh was then having a 12-bore S.B.B.L. gun with him which was seized and sealed. In consequence of the information furnished by him, some empty cartridges were recovered. In consequence of the information furnished by accused Gittansingh a 12 bore pistol the empty cartridges were recovered from his house. Both the accused persons had licences for the above fire-arms. The licences were also seized and sealed. On the death of Jarnailsingh, his inquest report was also prepared. On the completion of investigation, the police presented a challan against the accused-appellants in the Court of Munsif and Judicial Magistrate, Gajasinghnagar, who in his turn committed the case for trial 'to the Court of Sessions. The learned Sessions Judge, Ganganagar framed charges under Sections 302/34 and 307, IPC and under Section 27 of the Arms Act against accused Malsingh and under Sections 302/34 and 207, IPC and under Section 27 of the Arms Act against accused Gittan Singh Both the accused pleaded not guilty and faced the trial. According to their statements recorded under Section 313, Cr. P.C., the complaint party made an assault on them. Accused Gittan-Singh fired the shots to save him from being further beaten by some unknown persons. In support of its case, the prosecution examined 10 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge found the prosecution story substantially true. He found no merit in the defence version. The charged were held proved and the accused-appellants were convicted and sentences as mentioned at the very out-set. Hence this joint appeal by the accused-appellants.
8. We have heard Shri M.C. Bhandari, Counsel appearing for the appellants and Shri L. S. Udawat learned Public Prosecutor for the State assisted by Shri M. L. Garg, the learned Counsel for the complainant. We have also gone through the case file carefully.
9. There is no dispute that the death of Prakash Singh and Jarnail Singh was not natural but homicidal. According to the doctors who conducted the post-mortem examination of the dead bodies of these two victims, their death took place on account of gun-shot injuries. We have gone through the testimony of the doctors and find no good or cogent reasons to distrust their opinion about the cause of death of the two victims. So also, the number of injuries sustained by PW 1 Rajasingh is not open to any doubt. In fact, no argument was addressed by Mr. Bhandari to induce us to disbelieve the testimony of the doctors.
10. In order to establish the charges against the appellants, the prosecution examined three ocular witnesses viz., PW 1 Rajasingh, PW 4 Bikarsingh and PW 5 Pritamsingh, each of whom has claimed to have seen the incident. We may point out that PW 1 Rajasingh is the injured victim a who was fortunate enough to survive.
11. It was argued by Mr. Bhandari that the aforesaid three witnessess are not witnesses of truth and the court below was in error in putting reliance on their statement in convicting the appellants. It was urged that none of them is an independent witnesses. PW Rajasingh being an injured victim was highly interested in his own cause PW 4 Bikarsingh had an animous against his brother accused Gittan Singh. The presence of PW 5 Pritamsingh on the spot is highly doubtful. It was also argued that the prosecution has withheld the other eye witnesses and has adduced no explanation for withholding them. In the context of these circumstances, the conviction of the accused was bad and unsustainable. In reply, the learned Public Prosecutor supported the findings of the Court below and submitted that the evidence of the three eye witnesses was not open to any criticism. Their testimony was free from suspicion and above the board. The testimony of a witness should not be disbelieved simply because he is a close relative of the deceased victim or is himself an injured victim. It was further submitted that PW 4 Bikarsingh is the real brother of accused Gittan Singh. It is not expected from hire that he would falsely implicate his own brother. We have taken the respective submission into consideration.
12. It would be proper to briefly read the evidence of three eye witnesses.
13. PW 1 Rajasingh is an injured victim. Describing the cause for truble, he deposed that in the previous evening of the day of occurrence, a Panchayat was convened to resolve the dispute relating to two bighas of agricultural land. The appellants, the deceased victim Prakash Singh, he (witness) PW 4 Bikarsingh PW 5 Pritamsingh and many other persons were present there. When the appellants were asked by the deceased-victim Prakash Singh and PW 4 Bikarsingh to give two Bighas of land to him 1 (witness), the appellants sought time and told that they would give their final reply next day in the morning The Panchayat dissolved. Next day in the morning i.e. September 23, 1977 the Panchayat again assembled at the Panchayat Bhawan. The appellants, PW 4 Bikarsingh, PW 5 Pritamsingh, he (witness), his brother Prakash Singh and many other persons took part in it. When the appellants were asked to give the land, accused Gittan Singh expressed his unwillingness to do so. The Panchayat then dissolved without taking any decision and leaving the parties to their fate. The witnesses farther stated that after the Panchayat was dissolved, the appellants grappled with him and PW 4 Bikarsingh. Those persons who were present there, separated them. The appellants went to their houses. He PW 4 Bikarsingh, P M 5 Pritamsingh and fie decease 1-victim Prakashsingh came to his house situate just opposite to the Panchayat Bhawan. The other deceased-victim Jarnailsingh also cams there. While they were standing there, the appellants came with fire-arms. Accused Malsingh hid 12 bore SBBL gun while accused Gittansingh had a 12 bore pistol. They stood at the turning corner of the street situate contiguous to the house of Meharsingh (shown by digit 5' in the site plan Ex. P. 4). From there accused Malsingh fired a shot of his gun at Prakash Singh which hit him in his chest and arm. Prakash Singh fell down then land there. He (witness) went to help. Just at that moment accused Gittansingh fired a shot with his pistol at him which hit him on his right hand. Accused Malsingh then fired another shot with his gun at Jarnailsingh, Jarnailsingh also fell down. The witness continued to state that he immediately proceeded to Police Station, Gajsinghpura and verbally lodged report Ex P. 3 there at about 10-15 A.M. on the same day. It may be mentioned that the distance between the Police Station Gajsinghpura and the place of occurrence is only of three miles. PW 4 Bikarsingh is the real brother of accused Gittan Singh. Narrating how the dispute arose over the agricultural land, he stated that he was called in the Panchayat to resolve the dispute in the previous evening of the day of occurrence. The appellants, the deceased-victim Prakashsingh, the injured victim Rajasingh (PW 1) and many other persons were present there in the meeting of tie Panchayat. The members of the Panchayat asked the appellants to give the land. The appellants took time till next day. The Panchayat dissolved and again met next day in the morning at Panchayat Bhawan. In that Panchayat also, the same persons including the appellants, PW 1 Rajasingh, PW 5 Pritamsingh, he and others were present. When the appellants were asked to give their reply about the land, they expressed their unwillingness for any compromise. The Panchayat left the parties at their fate and dissolved. The appellants started grapping with him and Rajasingh (PW 1). The members of the Panchayat separated them. The appellants wents towards their houses. He PW 1 Rajasingh, PW 5 Pritamsingh and the deceased-victim Prakash Singh went to the house of Rajasingh (PW 1) and remained standing outside it near a Chabutari. The, other deceased-victim Jarnailsingh also came there. While they all were standing there, the appellants came with firearms. Accused Malsingh had a 12 bore S.B.B.L. gun while accused Gittan Singh had a 12 bore pistol. The appellants came upto the front side of the house of Meharsingh. From there accused Malsingh fired a shot from his gun at Prakash Singh, which hit him in his chest. Prakash Singh fell down. Accused Gittansingh fired a shot from his pistol at Rajasingh (PW 1) which hit him in his arm. Accused Malsingh fired another shot with his gun at Jarnailsingh which hit him on his arm and other parts. Jarnailsingh also fell down. The same narration of the incident was given by PW 5 Pritamsingh in more or less the same words. He was present in both the Panchayats He stated that when the appellants did not bow before the Panchayat, the appellants started quarrelling with Rajasingh had Bikarsingh. They (members of the Panchayat) separated them. The accused went away to their house. He, Rajasingh (PW )), Prakash Singh (deceased-victim), Bikarsingh (PW 4) and others came to the house of Rajasingh (PW 1) and stood outside near the Chabutari Jarnailsingh (another deceased-victim) also came there. While they were talking, the appellants came with fire arms. Accused Malsingh had a 12 bore S.B.B.L. gun while accused Gittansingh had a 12 bore pistol. Accused Malsingh fired a shot from his gun at Prakashsingh which hit him in his chest. Prakash Singh fell down. Accused Gittansingh fired a shot from his pistol which hit Rajasingh. Accused Malsingh fired another shot from his gun at Jarnailsingh. Jarnail Singh also fell down. The accused thereafter ran away.
14. All these witnesses were cross-examined at length. But nothing useful could be elicited from them which may render any help to the appellants. It is true that the deceased victims were close relatives of PW 1 Rajasingh. One happened to be his real brother while the other his cousin But the testimony of a witness cannot be discharged solely on the ground of his close relationship with the deceased-victim. It is difficult to conceive that PW 1 Rajasingh would leave the real culprits who killed his brother and cousin and would falsely substitute the appellants in place of them. Relationship only points out that the testimony of such a witness should be scrutinised and scanned carefully and should be read in evidence with caution.
15. A bare look into the site plan Ex. P.4 shows that the house of PW 1 Raja Singh is situate just opposite to the Panchayat Bhawan. In between these two buildings, land is open. The house of Mehar Singh is situate contiguous to that of Raja Singh (PW 1), As such it was quite natural on the part of Raja Singh (PW 1). Bikar Singh (PW 4), Pritam Singh (PW 5) and the deceased-victim Prakash Singh to come from Panchayat Bhawan after the Panchayat was dissolved and to stand outside the house of Raja Singh (PW 1). Their presence on the spot is not open to any challenge. Rather their presence on the spot was quite natural.
16. It was vehemently contended by the learned Counsel for the appellants these witnesses were not in a position to see the miscreants who had fired the shots It was argued that since there was a dispute between the appellants and Raja Singh, the eye witnesses have falsely implicated the appellants only on the ground of suspicion and further on account of their strained relations with them. We have given our anxious consideration to the contention and find no substance in it. According to eye-witnesses, the appellants came with fire-arms upto the house of Mehar Singh and from there fired the shots. There is nothing to discredit these witnesses and to put their testimony at a discount on this point of seeing the appellants firing the shots. After all, a fire from pistol is effective only to a limited distance. Had the appellants not come in direct visibility of the eye-witnesses, it was rather impossible that the shot fired from pistol would have hit Raja Singh. The pistol shot shows that the appellants were not at a big distance from the victims. We therefore, find no force in the contention that the actual assailants who fired the shots could not be identified by the eye-witnesses and the appellants have been falsely substituted in the their place merely on suspicion and enmity. The contention holds no ground.
17. It was next argued by Mr. Bhandari that injuries of accused Mal Singh have not been explained by the eye-witnesses. They have thus suppressed the material facts and should not be taken to be witness of absolute truth. No accused Mal Singh was arrested on September 25, 1977 vide arrest memo Ex. P. 31. The arrest memo shows that he had a scratch on his right wrist where a little blood had clotted. He also had swelling on the palm. In our opinion, these marks are insignificant and trivial and do not make out a case that accused Mal Singh had received any injury. Such scratch and swelling cannot give rise to an inference that he was assaulted or belaboured. Before the prosecution is asked to explain the injuries on the parson of the accused, two conditions must be satisfied i.e. (i) that the injuries on the person of accused must be very serious and severe and not superficial and (ii) that it must be shown that this injury must have been caused at the time of occurrence in question. Here the injuries of accused Mal Singh are so insignificant that no notice can be taken of them. Such injuries are superficial and cm be sustained by any agriculturist while doing his work. We have no hesitation in rejecting the contention.
18. It was next contented tint the sequence of the shots fired by the appellants has been changed during trial. It was argued that during investigation these three eye witnesses deposed that accused Malsingh fired the first shot and the second shot in quick succession with his gun. Accused Gittansingh had fired the shot from his pistol after when accused Malsingh had fired both the shots. But during trial it was stated that accused Mal Singh fired the first shot and thereafter accused Gittansingh fired the shot from his pistol and it was only thereafter that accused Malsingh fired another shot. In our opinion, this discrepancy has no material bearing on the main core and the essential features of the prosecution story that accused Malsingh fired two shots and accused Gittansingh fired one shot. There is no change in the manner of firing and the fire-arms attributed to the appellants. The discrepancy is immaterial and does not help the accused.
19. It was then argued that the prosecution has not examined all the eye witnesses of the occurrence and remained content by examining only three witnesses. It was argued that there is no explanation for with holding the other eye witnesses of the incident. As such an adverse presumption should be drawn against the prosecution that in case those persons were examined, they would have not supported the prosecution case. On a careful examination of the contention, we again find no substance in it. It is true that according to the three ere witnesses many persons viz. Mst. Midho Kaur, Mst. Gyan Kaur, Puransingh, Najarsingh and Bahadursingh were present near about the place of occurrence. But in our opinion their non-production in evidence does not speak adversely against the prosecution. Mst. Midho Kaur is a real sister of Rajasingh (PW 1). Mst. Gyankaur is his real Bhabhi. Puransingh, Najarsingh and Bahadursingh are his close relatives as admitted by him in his cross-examination. All these persons and some others have been cited as witnesses in the calender of the witnesses filed along with the police challan. Since they are the close relatives of PW 1 Rajasingh, the prosecution thought it proper not to multiply the evidence by examining them. The order sheet dated December 13, 1978 of the case file shows that the learned Public Prosecutor withdrew the remaining eye witnesses and closed the evidence. We find nothing unusual in it. In the circumstances of the case referred to above, the non-production of these witnesses in evidence does not speak against the prosecution There is a consenus of judicial opinion that in case enough number of witnesses have been examined with regard to the actual occurrence and their evidence is reliable and sufficient to base the the conviction of the accused thereon, the prosecution may well decide to refrain from examining the other witnesses. As such, the prosecution need not examine all the eye witnesses of the occurrence. Only the witnesses essential to the unfolding of the narrative on which the prosecution case is based, should be examined. It is no use of multiplying the evidence by the same sort of witnesses. We, therefore, find no substance in the contention.
20. While appreciating the evidence of the three eye-witnesses, we may point out that PW 1 Rajasingh is an injured victim. The FIR Ex. P. 3 was lodged within an hour of the occurrence. In Ex. P. 3 the names of the appellants as well as the witnesses have been mentioned. Not only so, a complete narration of the incident has been disclosed in it. This FIR Ex P 3 was received in the Court on September 24, 1977 i.e. on the next day of the occurrence. Thus, the promptness in lodging the FIR gives a valuable corroboration to the direct testimony of the three eye witnesses.
21. The learned trial Judge accepted tie evidence of these three witnesses as true and convicted the appellants thereon. To us also, their evidence appears natural, serene, plain and trust worthy. The criticism leveled against them to induce us to reject their evidence, has no substance. On the strength of what they deposed, it can be safely held that accused Malsingh fired two shots with his gun one hitting the deceased-victim Prakash Singh and the other hitting deceased victim Jarnail Singh. Accused Gittan Singh fired a shot from his pistol at PW 1 Rajasingh and caused injuries to him thereby.
22. The last contention of Mr. Bhandari is that accused Gittansingh was wrongly convicted under Section 302 with the aid of Section 34, IPC it was argued that in the facts and circumstances of the case it cannot be sais thtat the accused had formed a common intention to commit the murders and accused Gittansingh shared that the common intention to commit the murders with the co-accused, Malsingh. It was argued that the killing of the two victims by accused Malsingh was his individual act & accused Gittan Singh should not be saddled with it on the ground of constructive liability. It was argued that at any rate it would not be free from risk in maintaining the conviction of accused Gittansingh by invoking Section 34, IPC. In reply, the learned Public Prosecutor submitted that the facts and circumstances unerringly point out that both the accused had formed a common intention to kill and this common intention was shared by both of them. The appellants went away together from the Panchayat Bhawan and came back armed and thereafter went away together. These circumstance are sufficient to (sic)ress Section 34, into service as against accused Gittansingh to convict him under Section 302, IPC. We have taken the respective submissions into consideration.
23. Now, Section 34, IPC is only a rule of evidence and does not create any substantive of offence. They sustain a charge with the aid of Section 34, IPC it is the intention to commit the crime and the accused can be convicted if such and intention has been shared by him along with his co-culprits. Common intention implied a pre arranged plan and acting in concert. Direct evidence relating to formation of common intention is seldom available and it is generally inferred from the acts and conduct of the accused persons and such other relevant circumstances. The existence of common intention is thus largely inferencial from surrounding circumstances and antecedents and subsequent conduct of the culprits. A caution was sound by the Lordship of the Privy Council in Mehboob Shah v. The Emperor AIR 1945 PC 118 that the inference of common intention should never be raised unless it is a necessary inference deducible from the circumstances of the case. The caustion enunciated by their Lordships of the Privy Council hold good even today and has been consistently reiterated by the Supreme Court.
24. In the instant case the evidence of the ocular witness PW 1 Rajasingh, PW 4 Bikarsingh and PW 5 Pritamsingh reveals that both appellants were in the meeting of the Panchayat assembled in the evening preceding the day of occurrence and in the morning of the day of occurrence. When the Panchayat dissolved in the morning of the day of occurrence leaving the parties to their own fate, the appellants went together from the Panchayat Bhawan. After 5 or 7 minutes, they came with firearms. Accused Malsingh had a 12 bore S.B.B.L. gun while accused Gittansingh (sic)had 12 bore Pistol. Both these fire-arms are dangerous weapons which can be easily put for deadly effect. The appellants fired the arms at the victims. They thereafter went together from the scene of occurrence after the shooting was over. It was accused Gittansingh who had a direct dispute with PW 1 Rajasingh. The deceased-victims Prakash Singh was the real brother while the other deceased-victim Jarnailsingh was the cousin of PW 1 Rajasingh. The appellants are close relatives inter se, their fathers being the real brothers. Thus taking into consideration the various facts such as the dispute between the parties, their relations inter se, the manner in which the occurrence took place, the sequence of events, the individual acts of the appellants their conduct before and after the commission of the offence, the irresistable conclusion is that the murders were committed in furtherance of the common intention of the appellants. The intention of one to commit the murders was known to the other and each shared this common intention. Common intention to kill is generally inferred from the manner of attack and the kind of arms used by the accused persons. Here one accused had a 12 bore S.B.B.L. gun while the other had a 22 bore Pistol. The attack was joint and conserted. Having regards to the facts and circumstances and the manner in which the attack was made and the firearms were used, we are of the opinion that Section 34 IPC was correctly employed by the Court below in convicting the appellant Gittansingh under Section 302 IPC. The contention of the learned Counsel that Section 34 IPC was wrongly pressed into service, is devoid of force.
25. No other contention was raised.
26. For the reasons discussed above, we find no force in this appeal. The appellants were rightly convicted and sentenced for the various offences. They were charged with. No interference is called for.
27. The appeal of accused Malsingh and Gittan Singh is consequently dismissed.