Judgment:
Swatanter Kumar, J.
1. Criminal Appeal No. 31 ODD of 2001 has been filed by Baldev Singh and Kulwinder Singh against the judgment of conviction and order of sentence dated 20-2-2001 vide which Kulwinder Singh and Baldev Singh have been found guilty under Section 302 of Indian Penal Code (hereinafter referred to as the Code ) and Criminal Appeal No. 177-DB of 2001 has been preferred by Nirpal Singh and Nardev Singh who have been found guilty of offences punishable under Sections 120B read with Section 302 of the Code. All were awarded imprisonment for life and payment of Rs. 2000/- each as fine, and in default thereto to further undergo rigorous imprisonment for six months each. While Criminal Revision No. 1611 of 2001 has been filed by Harinder Singh complainant praying for enhancement of sentence for capital punishment to the accused. These appeals and revision, thus, arise out of a common judgment. Both the appeals were admitted and the revision petition was ordered to be heard along with Criminal Appeal No. 177 DB of 2001 vide order of the Division Bench dated 28-1-2002. We would, thus, dispose of all these eases by a common judgment.
2. FIR No. 67 dated 15-10-1997 Ex. PM/ 2 was registered at 2.00 p.m. under Sections 307/34 of the Code and Sections 25 and 27 of the Arms Act, hereinafter referred to as the Act. The FIR Ex. PM/2 related to an occurrence which allegedly took place at 7.45 a.m. on 15-10-1997 . It was recorded on the statement of Harinder Singh, who was examined in Court as PW 4. The Statement reads as under :
'Stated that 1 am the resident of village Behman Diwana and do agriculture work with my father. Today morning I and my father Rajbir Singh had gone to our Niai Wala filed in order to have a round in our field. After giving instructions to the agriculture workers (Serees) regarding work to be done my father Rajbir Singh started from the fields on fool towards the village and I was also following him at a distance of about 30/35 Karmas. When my father reached near the Phirni (circular road) of the village it was about 7.45 a.m. two persons covering their bodies with Khes were standing there, on seeing my father they raised the lalkara that he will not be allowed to go today. My father became nervous and ran towards the street which leads to the village. Both unknown persons followed him and opened fire with their pistols which they were holding in their respective hands with the intention to kill my father which hit on the back of my father and my father fell down with his face downward in front of the door of the house of Budha Singh and the door of which was closed. I raised the alarm of Marta Marta. On raising my alarm both the unknown persons to whom I can identify on being produced before me, fled away towards the Phirni (circular road) of village Behman Diwana along with their respective weapons. On reaching near my father I found two fire arm injuries on his back and shoulder blade and blood was oozing from the injuries. In the meantime Gurbax Singh s/o Cahnan Singh and Gurmit Singh s/o Mal Singh, Jat by caste, r/o Behman Diwana also readied at the spot and Baldev Singh s/o Gurbax Singh brought his jeep and got my father admitted in Civil Hospital, Bathinda, I have suspicion that the entire occurrence was arranged by Nirpal Singh and Nardev Singh s/o Pargat Singh r/o Jodhpur Pakkar now at Behman Diwana. The motive behind the grudge is that Nirmal Singh and Nardev Singh are the sons- in-law of Chand Kaur who is 'Bua' (fathers sister) of my father, About, one year back they had partitioned the land from Chand Kaur and now they are demanding more land. Chand Kaur has adopted my father as her son and kept him with her and Chand Kaur had also arranged his marriage. My father himself cultivates the land of Chand Kaur due to which Nirpal Singh and Nardev Singh were nursing grudge with my father. Statement got recorded . The same is heard which is correct. Action may be taken.'
3. Unfortunately, Rajbir Singh died and an entry to this effect was made vide Ex. PS on 16-10-1997 and the offence was converted Section 302 of the Code. The inquest report Ex. PG was prepared by Dawinder Singh SI/SHO, who investigated the matter and recorded the statements of various witnesses under Section 161, Cr.P.C. PW 1 Dr. Shushil Gupta, E.M.O. Civil Hospital, Bhatinda had examined and treated the injured Rajbir Singh and found the following injuries on his person :
'1. One wound of entry which is lacerated and 2 x 2 cm. circular in shape with inverted margins and it is situated on the right side of the back of chest and about 8th-9th rib area. 10 cms medial to the vertebral column. Fresh blood from wound was present. On probing the wound that was going at lower side of abdomen, injury kept for X-ray.
2. Wound of entry which was lacerated and 2 x 1-1/4 cm. circular in shape with inverted margins and situated on the right side of the back just on the vertebral column and on the survical thorax region. Blood was present on the wound, wound could not be probed up. Injury kept for X-ray.
The copy of the medico legal report was Ex. PA along with pictorial diagram showing the seats of the injuries. Bed head ticket Ex. PE was proved by this doctor. Upon death of Rajbir Singh, his post mortem was conducted by Dr. U.S. Sooch (P.W. 2), who also noticed the following injuries on the body of the deceased and he prepared the post mortem report copy of which was Ex. PE :
'1. Lacerated wound 3/4' x 1/2' with inverted margins on the right interscapular area in its lower part near the vertebral column.
2. Circular lacerated wound 3/4' x 3/4' with inverted margins just below the inferior angle of the right scapula.
Surgical midline vertical wound on the front of the abdomen 6' long was present. Two surgical drain wounds on each side of flanks of the abdomen and two surgical stitched drain wounds on both sides of the chest with vane section wound on the left ankle and left elbow.'
4. Ex.P. 1.12 bore country made pistol in question was recovered vide recovery memo Ex.PQ/2 in furtherance to the disclosure statement Ex. PQ/1 made by Baldev Singh accused. Similarly, another country made .32 bore double barrel pistol Ex. P.2 was recovered and taken into possession vide recovery memo Ex.PQ/4 in pursuance to disclosure statement Ex. PQ made by accused Kulwinder Singh.
5. To the above occurrence Gurbax Singh P.W. 3 and Harinder Singh P.W. 4 are the eye witnesses while Gurmit Singh and Bhupinder Singh were given up by the prosecution as being won over while Gurbinder Singh, Baldev Singh, constable Karamjit Singh and constable Parminder Singh were given up being un necessary by the prosecution on 4-5-2000. In order to appropriately appreciate the merits of the contentions raised on behalf of the accused, it may be appropriate to refer to examination -in-chief of P.W. 4 Harinder Singh, the eye witness, which is reproduced as under :--
'On 15-10-1997 I and my father Rajbir Singh had gone to our fields known as Niaiwala Khet from our house and after having a round of our fields had started returning to our house. My father was ahead of me by about 30 or 45 yards. Then at about 7.45 a.m. my father reached on the phirni of our village accused Kulwinder Singh alias Kala and Baldev Singh accused both present in the Court were standing there. Both of them raised Lalkara saying to my father that they will not allow him to escape. My father became perturbed and he started running after him with pistols in their hand. Both of them fired at my father with a respective weapon in order to kill him. Both shots fired by them hit on the back of my father. My father fell down near the closed door of Budha Singh. I raised alarm say in Mar dita mar dita. Gurbax Singh son of Chanan Singh and Gurmit Singh son of Mal Singh also reached there. They witnessed the occurrence. We raised alarm and then the accused ran away with their respective weapons toward village Bir Behman. When we reached near the body of my father and saw fire shot injuries on his back. Baldev Singh brought the jeep in which my father was removed to Civil Hospital, Bathinada from where he has referred to Ludhiana and my father succumbed to the injuries during that very night.
Nirpal Singh and Nardev Singh accused are the sons-in-law of Chand Kaur who had adopted my father Rajbir Singh, Rajbir singh used to cultivate the land of Chand Kaur and the accused bore grudge over this. Police came to Civil Hospital, Bathinda where my statement Ex.PM was recorded which was read over and explained to me and I signed the same in token of its correctness.'
6. As nobody had appeared for the appellants in Criminal Appeal No. 310-DB of 2001, we had requested Mr. R.S. Cheema, Senior Advocate, to conduct the case as amicus curiae, to which he agreed. The learned counsel appearing for the different accused in the respective appeals inter alia contended that the accused have nowhere been identified by the witnesses, as such their involvement in the alleged crime is doubtful. The charge of conspiracy has not been proved. The contents of the F.I.R. are not only lacking in material particulars but do not even make a reference to the description of the accused. Non production of material witnesses including the Superintendent of Police, who is stated to have conducted the enquiry at the first instance, must lead to draw an adverse inference against the prosecution. Gurbax Singh PW 3 is a planted witness and the eye version stated by this witness is patently false. In the ruqqa and M.L.R. sending the injured to C.M.C. Ludhiana, nowhere refers to the son of the deceased Harindar Singh. His conduct is most unnatural and casts a doubt of his being an eye witness. Both Gurbax Singh PW 3 and Harinder Singh PW 4 had come after the alleged occurrence.
7. The case of the prosecution as stated by Harinder Singh PW 4 which has been substantively corroborated by the statement of Gurbux Singh PW. 3. According to Gurbax Singh P.W. 3 and accused Nirmal Singh and Nardev Singh are the sons -in-law of Chand Kaur and they wanted to have the land of Chand Kaur. The land had been partitioned and they started cultivating it. Some land was transferred to Rajbir Singh , the deceased, over which Nirpal Singh and Nardev Singh were not happy and the quarrel took place between three of them and arm of Nardev Singh was fractured. On 15-10-1997 at about 7.45 a.m. when they were going towards the colony of Harijans and reached the vacant plot of Balbir Singh, they saw Rajbir Singh coming from the side of 'kacha' path and reached in the chowk (crossing), Lulwinder Singh alias Kala and Baldev Singh accused who were present in Court and were identified by the witnesses also were known to him earlier. Both these accused used to visit the house of Nirpal Singh and Nardev Singh earlier also. They challenged that Rajbir Singh will not be spared. Then both Kulwinder Singh and Baldev Singh fired from their respective pistols towards Rajbir Singh after chasing him. The fires hit Rajbir Singh. He fell in front of the house of Budha Singh. Harinder Singh PW 4 son of Rajbir Singh was also coming behind Rajbir Singh, who raised alarm. Both the accused ran away with their respective weapons. Lateron Rajbir Singh was removed to Civil Hospital, Bathinda in the Jeep of Baldev Singh. Gurbax Singh P.W. 3 and Gurmit Singh remained at the spot. The police had come. Blood stained earth was lifted from the place of occurrence and recovery memo Ex. PH was attested by this witness (P.W. 3). One cartridge was missed on which Meharsons was written. The same was taken into possession vide recovery memo Ex. PJ. One empty of 12 bore was also taken into possession vide recovery memo Ex.PK. Another empty cartridge of .32 bore was taken into possession vide recovery memo Ex. PL.
8. The presence of Gurbax Singh P.W. 3 at the place of occurrence cannot be said to be un natural. They were at some distance and the site plan Ex. PR clearly shows that between the place of occurrence at point A where the witness was standing with Gurmit Singh, is clearly visible. Intervening is only a vacant piece of land. As such there could be no obstruction for these witnesses in watching the occurrence. Further more, the version given by this witness i.e. P.W. 3 Gurbax Singh is duly supported by Harinder Singh P.W. 4 son of the deceased. Some discrepancies in their statements with regard to timing, the manner in which the occurrence took place, by itself, would not be sufficient to disbelieve these witnesses, particularly when the version given by them is duly supported by the recoveries effected from the site . Thereafter recovery of pistol Ex. P. 1 was made in furtherance to the disclosure statement of accused Baldev Singh Ex. PQ/1. Authenticity and genuineness of the eye version given by these two witnesses is further substantiated from the medical evidence Ex.PA and Ex.PA/1. The expert evidence i.e. the report of the Forensic Science Laboratory, Punjab, in its report Ex. PZ/4 after examining one.32 inch (.bore) lead bullet marked B/1 in the Laboratory and one Single cylindrical lead slug marked B/2 in the Laboratory opined as under :
'1. No definite opinion can be given regarding firing of one .32 inch lead bullet marked B/l from .32 inch country made double barrel pistol marked W/2, due to lack of sufficient individual characteristic marks.
2. No definite opinion can be given regarding firing of one cylindrical lead slug marked B/2 from 12 bore country- made pistol marked W/1, due to lack of sufficient individual characteristic marks.'
Besides, vide its report Ex.PZ/6 it was opined that the empties recovered from the site i.e. one misfired .12 bore Meharsons cartridge and the second .32 S & WL cartridge fired from left barrel of .32 bore (wrongly indicated as 12 bore in the FSL Report) double barrel country- made pistol were from the arms which were got recovered by the accused themselves. At this stage, it will be relevant to extract some pertinent findings in the report of the Forensic Science Laboratory Punjab Ex.PZ/6 :--
(See Table below)
RESULT OF EXAMINATION
1. No definite opinion can be given regarding firing of one 12 bore Shaktiman Express cartridge case marked C/2 from 12 bore country made pistol marked W/1, due to lack of sufficient individual characteristic marks.
Parcel 'A' contained One .32 inch rimmed cartridge case markedC/1 in the laboratory.Parcel 'B' contained One .12 bore Shaktiman Express catridgecase marked C/2 in the laboratory (metal-lic head portion separated from cardboardtube) Parcel 'C' contained One .12 bore Meharsons cartridge casemarked M/1 in the laboratory.Parcel 'D' contained One .12 bore country made pistol markedW/1 in the laboratory.Parcel 'E' contained One .32 bore calibre double barrel countrymade pistol marked W/2 in the laboratory.xx xx xx
2. One 12 bore Meharsons misfired cartridge marked M/1 contained in parcel 'C', has been misfired from 12 bore country-made pistol marked W/1.
3. One .32 S & WL cartridge case marked C/1 contained in parcel 'A' has been fired from left barrel of 12 bore DBBL, country-made pistol marked W/2 under reference.
9. The bare reading of the above report shows that in the last portion of the findings recorded .12 bore has to be read as .32 calibre double barrel pistol as that was marked as W/2. in the report Ex. PZ/3 of Chemical Examiner, it was reported that blood was found in Ex. No, 1 i.e. earth etc. and pieces were sent to Serologist Govt. of India. However, no blood was found on Ex. No. 11 i.e. sample of earth etc. In regard to the earth, pyjama and underwear which were taken into custody by the Investigating Officer it was found by the Serologist FSL Punjab vide his report Ex.PZ/5 concluded that these exhibits were stained with human blood.
10. Further reference to the medical evidence on record would help in clarifying the doubts sought to be created in the case of the prosecution. Dr. U.S. Sooch P.W. 2 clearly stated that cause of death in his opinion was the result of haemorrhage and shock caused by fire arm injuries which were ante mortem in nature. Probable time elapsed between the injuries and death was six to twelve hours and the time between the death and post mortem was about twelve hours. The post mortem on the dead body of Rajbir Singh was performed by Dr. U.S. Sooch P.W. 2 at about 1.15 p.m. on 16-10-1997. According to Dr. Sushil Gupta P.W. 1 he had examined Rajbir Singh who had been brought in a serious condition to him on 15-10-1997 at about 9.00 a.m. and the medical report prepared by him was Ex. PA and the pictorial diagram showing the set of injuries is Ex.PA/1. According to him Rajbir Singh was unfit to make a statement and he remained unfit to make a statement even in the later part of the day and there after he was referred to Rajinder Hospital, Patiala at about 12.00 noon. The request for recording his statement and opinion whether the deceased was in a fit condition to make a statement or not was sought by the learned Magistrate and the endorsement was made by the doctor are Ex. PC/1. The crime in question is not only supported by the above ocular, documentary and expert evidence but also in addition thereto substantial support to the case of the prosecution is provided by Balbir Singh P.W. 7 before whom accused Nirpal Singh, Nardev Singh and their father Pargat Singh had told him that the arm of Nardev Singh was fractured by Rajbir Singh and due to that grudge they had hired Baldev Singh and Gurdev Singh alias Kala to Kill Rajbir Singh and they had got him murdered from those persons. According to P.W. 7, this was told to him by Nardev Singh and later Narpal Singh and Pargat Singh also made the similar statement. According to this witness he had an influence with the police, as such the accused asked him to produce them before the police. He is an attesting witness to the recovery memo Ex. PQ/2 and PQ/4 in pursuance to Ex. PQ and PQ/1. As already noticed the recoveries effected were the cartridges, pistols etc.
11. The learned counsel for the appellants placed heavy reliance upon the judgment of the Hon'ble Supreme Court in the case of Narayan Singh v. State of M.P., AIR 1985 SC 1678 : (1985 Cri LJ 1862) to contend that the alleged extra judicial confession made by the accused to Balbir Singh P.W. 7 are inadmissible in evidence. He relied upon the following observations of the Hon'ble Supreme Court :--
'The learned Sessions Judge was mainly swayed by the consideration that PW. 11, who was the sole eye witness and had seen the occurrence, did not immediately disclose the names of the accused to the inmates of the family of the deceased when he went to the house. On this ground alone, the Sessions Judge thought that this was fatal defect in the prosecution case from which an irresistible inference could be drawn that P.W. 11 could never have seen the occurrence. We have gone through the evidence of P.W. 11 and we feel that the Sessions Judge was not at all correct. It was not the case that P.W. 11 never disclosed the details of the incident to the members of the family of the deceased but when he went to the house he immediately did not name the accused and the explanation given by P.W. 11 was that as he was completely perplexed he could not disclose the details immediately. The evidence of P.W. 11 shows that within 15 minutes he disclosed the names of the accused and gave full details of the occurrence. The learned Sessions Judge seems to have taken a most unrealistic view of the evidence of P.W. 11 by ignoring the fact that he (P.W. 11) being a guard of the deceased must have been shocked and stunned after seeing the whole incident and, therefore, he may not have been a position to mention the names of the accused immediately but after composing himself within 10-15 minutes he mentioned the names and also gave all the details. The presence of P.W. 11 at the scene at the time of attack on the deceased was not challenged before us. Nor could it be challenged, for the suggestion made to P.W. 11, which he has denied, that he himself had attacked the deceased. P.W. 11 appears to be a truthful witness as he himself admits that he could not immediately give the names because he was perplexed and it is quite a natural thing particularly in the case of a person coming from the strata of society of which P.W. 11 was a member. It is not uncommon for persons when they see a ghastly and dastardly murder being committed in their presence that they almost lose their sense of balance and remain dumb founded until they are able to compose themselves. This is exactly what may have happened to PW 11.
Apart from this there is the evidence of P.Ws. 5 and 9 who state on oath that one of the accused admitted before them that he had murdered the deceased. The learned Sessions Judge has brushed aside their evidence by presuming that their statements constituting an extra judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. In the instant case, after perusing the evidence of P.Ws. 5 and 9 we are unable to. find anything which could lead to the conclusion that these independent witnesses were not telling the truth. The evidence of these two witnesses (P.Ws. 5 and 9) which lends support to the evidence of P.W. 11 was sufficient to warrant the conviction of the accused. The Sessions Judge has committed a grave error of law in analysing and appreciating the evidence of P.Ws. 5 and 9 and brushing them aside on untenable grounds.'
12. The contention further raised is that the extra judicial confession by an accused must be definite, should be made to a person to whom the accused would have Some acquaintance or cause to make such a statement and should be relied upon only if it is otherwise sustainable and admissible in law. As far as this proposition of law is concerned, there cannot be much dispute. What has to be seen is that was Balbir Singh a stranger to the accused. The answer is not. In his statement as P.W. 7 he has clearly stated that he knew the accused Nirpal Singh and Pragat Singh etc. for the last more than four years. In his detailed cross examination he also admitted that he knew Rajbir Singh for a considerable time and denied the suggestion that no extra judicial confession was made to him by the accused. It is true that the witness has given a kind of generalised extra judicial confession to him and has not spelled out each and every word spoken by the respective accused. This inadequacy could have been of some consequence if the version given by this witness was not supported or corroborated by other evidence. Once the statement of his witness is fully corroborated by other prosecution witnesses and there is no serious contradiction which would have material effect for determining the matter in controversy. In our view there would be no absolute bar in partially relying upon the statement of such a witness referring to the extra judicial confession made by the accused.
13. The above evidence clearly indicates that the prosecution has been able to prove its case beyond the shadow of reasonable doubt. On behalf of the accused it was then argued on the strength of the judgment of the Hon'ble Supreme Court of India in the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738), that the incriminating material or evidence which was not put to the accused in his statement under Section 313, Cr.P.C. could not be referred to or relied upon by the prosecution and consequently by the Court in holding the accused guilty of the offence. Such materials will have to be even excluded by the Court. Reference was particularly made that the extra judicial confession was never put to Kulwidner Singh and Baldev Singh alias Kala. Even the pistol recovered was not put to these accused in their statements under Section 313, Cr.P.C. Firstly we notice that judgment of a Court would not stand vitiated unless non adherence to certain provisions resulted in failure of justice to the accused. In the present case, the extra judicial confession made by the accused was duly put to all other accused in their statements under Section 313 of the Code. P.W. 7 was duly cross examined in greater detail by the learned counsel appearing for these accused. In regard to recovery of the pistol the investigating officer was also cross-examined. As such both the accused were fully aware of these incriminating circumstances against them. They undertook the complete trial without any protest and their appears to be no failure of justice. In fact no arguments were addressed before the trial Court in that behalf.
14. Identification of the accused :
It is apparent from the record that Harinder Singh in furtherance to his statement Ex. PM/2, on the basis of which FIR was recorded, had not given the name of the accused in the first information report. But he had clearly stated that the two persons were covering their bodies with 'Khesi' and were standing there. He had also not made reference to the physique of the accused in FIR. The mere fact that an accused has not been named in an FIR by itself and as matter of rule would not result in acquittal of an accused. Such weakness in the case of the prosecution must be read and construed in conjunction with the evidence on record and in the facts and circumstances of each case. Harinder Singh while being examined as P.W. 4 had clearly stated that he knew the accused as they were coming to the house of Nirpal Singh and Nardev Singh and he did identify them in the Court. The site plan was prepared immediately after the occurrence and as the names of the accused were duly disclosed to the investigating officer, they had been specified in the site plan in particular reference to Point A from where Harinder Singh witnessed the entire occurrence and Point 'B' where Kulwinder alias Kala and Baldev Singh accused were present. Besides, Point 'C' from Gurbux Singh P.W. 3 and Gurmit Singh witnessed the entire occurrence and Point 'D' from where the accused Kulwinder Singh and Baldev Singh chased Rajbir Singh and fired with their respective pistols at his back.
15. Gurbax Singh P.W. 3 in his cross-examination stated that Kala and Baldev Singh were known to him for the last two years. Obviously while they used the fire arms they could not have kept their bodies totally covered by 'Khesis' and they were exposed to Gurbax Singh. The oral and documentary evidence including the disclosure statements of the accused which led to the recovery of the offending weapons clearly establishes the identification of the accused. Thus, in our opinion the mere fact that the accused have not been named in the FIR would be no ground to grant them the benefit of doubt.
16. While the statement of the accused under Section 313, Cr.P.C. was being recorded, they never put up before the Court they were in custody and the entire case has been planted upon them. Lack of this specific averment, which is now stated to be the shield argument for non participation in the identification parade on the face of it, stands falsified. The chain of events as established by the prosecution on record clearly points out the finger to the guilt and identification of these accused.
17. Further more, vide Ex.PX dated 27-10-1997, the investigating Officer had put an application for judicial remand as well as made a request that identification parade of the accused would not held as they had already been directed for keeping their faces muffled. However, the accused Kulwinder Singh and Baldev Singh declined to participate in the identification parade on the ground that they were in police custody and shown to the accused . This factor also shows that the accused were provided opportunity to participate in the identification parade in accordance with law. They declined of their own and now they cannot be permitted to argue to the contrary.
18. Great emphasis was placed on behalf of the prosecution on the fact that Gurmit Singh, who was accompanying, Gurbax Singh P.W. 3 at the time of occurrence has not been examined. This argument again is not of much consequence. As observed, Gurmit Singh was given up by the prosecution as having been won over by the accused as recorded in the order of the learned trial Court dated 4-5-2000. Once the prosecution has reasons to believe that the witness has been won over by the accused and is likely to prejudice the case of the prosecution, the Court would normally not be in a position to draw adverse inference against the prosecution for non examination of such witness. In the present case there were two eye witnesses i.e. P.W. 3 and P.W. 4 who had given the eye witness account of the occurrence and even seeing from that angle, it would not be entirely essential for the prosecution to examine these witnesses who would only repeat what has already been said by these witnesses. It is a settled principle of law that the Court must weigh the evidence in terms of quality and reliability rather than measuring it in terms of quantity or numerology.
19. The statement of P.W. 4 Harinder Singh was seriously questioned before us by the defence on the ground that his name was not mentioned in the ruqqa Ex. PD sent by the police as well as in the M.L.R. and he was not even present at the Christian Medical College and Hospital, Ludhiana along with his father. All these circumstances, if collectively seen, show that he was not an eye-witness and the version given by him is a false one. No doubt the name of P.W. 4 has not been mentioned in the ruqqa and in the medical records, but it has been shown that the deceased was brought to the hospital by Baldev Singh son or Gurbax Singh. We are unable to find any fault in the case of the prosecution even on this score.
20. Gurbax Singh P.W. 3 in his statement clearly stated that after Rajbir Singh fell on the ground upon receiving the injuries, he and Gurmit Singh remained at the spot and Rajbir Singh was removed to Civil Hospital, Bathinda in a jeep throughout by Baldev Singh son of Gurbax Singh and Harinder Singh P.W. 4. Ex. PA clearly shows that Baldev Singh son of Gurbax Singh was present during the entire medical care of the deceased. He had brought the deceased to the hospital and his signatures are there on Ex. PA. As per Ex. PG even the dead body of the deceased was identified by Baldev Singh son of Gurbax Singh and Harinder Singh son of Rajbir Singh. In these circumstances the mere fact that name of Harinder Singh is not mentioned in ruqqa Ex. PD would be inconsequential.
21. Motive and conspiracy :
The motive being a relevant factor has to be seen by the Court. The learned trial Court has recorded that the motive stood proved. The following extract from the trial Court judgment can usefully be noticed at this stage :
'In the present case no doubt there is no direct evidence of conspiracy, but there is a strong motive for accused-Nardev Singh and Nirpal Singh to commit the murder of Rajbir Singh. Admittedly, they are the sons-in-law of Sadhu Singh, husband of Chand Kaur. After the death of Sadhu Singh his land was mutated in the names of his daughters and wife Chand Kaur. It has also come in evidence that Nardev Singh and Nirpal Singh got separated the shares of their wives from Chand Kaur in the learned property as well as in the house and they were residing in the same village, where Chand Kaur resides. It has also come in evidence that Chand Kaur had adopted Rajbir Singh her brother's son as her son, who is residing with her along with his children. It has also come in evidence that some time prior to the occurrence Chand Kaur transferred 8 Killas of land in favour of Ranbir Singh deceased and copies of the transfer deeds are Ex. PU and Ex. PV. These documents can be looked into for collateral purposes in the present case, because I am not deciding the title of that land on the basis of these documents and, therefore, the rulings relied upon by the learned defence counsel will not apply to this case regarding the admissibllity of these documents. These documents prove the motive for Nardev Singh and Nirpal Singh to commit the murder of Rajbir Singh, because their mother-in-law Chand Kaur transferred her 8 Killas of land to Rajbir Singh. That is they hatched the conspiracy and hired Kulwinder Singh alias Kala and Baldev Singh to execute their plan of murdering Rajbir Singh. No doubt there is no direct evidence of payment of money by these accused to Kulwinder Singh and Baldev Singh, yet there is some evidence on the file that they were to get some amount, though Rs. 2,00,000/- which was the settled amount as per Balbir Singh (P.W. 7) was not yet paid to these accused. Moreover, the payment of such an amount can also be only in the knowledge of the accused and no direct evidence on this point can be led, but one fact is clear in the present case that Kulwinder Singh alias Kala and Baldev Singh had no other motive to commit the murder of Rajbir Singh. They belong to a distant village and are not related to the other accused or the deceased and they had committed this crime only for greed of money. In such like cases, it is very difficult for the prosecution to collect and produce evidence of clear cut conspiracy or motive, but the motive as well as conspiracy can be inferred from the surrounding circumstances. Since there is a strong motive for the accused-Nardev Singh and Nirpal Singh to commit the murder of Rabir Singh, who had got transferred the valuable land from Chand Kaur, mother-in-law of these accused, that is why they hired the services of accused-Kulwinder Singh alias Kala and Baldev Singh to eliminate Rajbir Singh. The participation of Kulwinder Singh alias Kala and Baldev Singh in the crime is established from the fact that both Gurbax Singh and Harinder Singh P.Ws. had named them and identified them and they are connected with this murder from the weapons recovered from them, which are connected with the empties recovered from the place of occurrence by the Investigating Officer. No doubt these weapons were recovered from open and accessible places, but still the conscious possession of the accused over these weapons is also established, because they were found buried in the earth and were not lying in the open place. So a person, who has buried the same could have the knowledge of the existence of those weapons and these weapons could not have been recovered by the police without the assistance of these accused and, therefore, Section 27 of the Evidence Act is quite applicable to the present case. If the participation of Kulwinder Singh alias Kala and Baldev Singh in the murder of Rajbir Singh is proved, then the conspiracy on the part of accused-Nardev Singh and Nirpal Singh is also proved, because they have a strong motive to get Rajbir Singh eliminated, whereas Kulwinder Singh alias Kala and Baldev Singh have no direct motive to eliminate him.'
22. We fully concur with the reasoning given by the trial Court. As per statements of P.W. 3, P.W. 4 and P.W. 7, there was a fight and arm of Nirpal Singh was fractured as they did not like transfer of the land in favour of Rajbir Singh. Ex. PV clearly shows the fact that Chand Kaur widow of Sadhu Singh had transferred land measuring about 24 kanals 13 marlas in favour of Rajbir Singh son of Bhagat Singh for a consideration of Rs. 3,13,000/-. This sale deed was registered on 27-5-1996. There was a land dispute between the parties. There were fights. As such the accused had the reason or cause to eliminate deceased-Rajbir Singh. It has come in evidence that Rajbir Singh was looking after the interests of Chand Kaur who had already lost her husband. This was not liked by the accused. Motive is certainly a relevant factor, but is not an absolute essential for recording a finding of guilt. The motive further indicates and it has come in evidence that accused-Baldev Singh and Kulwinder Singh were hired by Nirpal Singh and Nardev Singh for committing the murder of Rajbir Singh. The factum that the accused had conspired for doing the crime also stands established. Baldev Singh and Kulwinder Singh were coming to the house of Nirpal and Nardev Singh and their association with their co-accused cannot be ruled out.
23. The contention or the appellants that non-production of material witness i.e. Shri Jitender Jain, the then Superintendent of Police, Bhatinda, who visited the spot soon after the occurrence and even before the arrival of the SHO had not been examined by the prosecution and that he was the best person to depose about the occurrence has been considered and we find the same to be not of much significance.
24. Gurbax Singh P.W. 3 in his deposition states that before the arrival of the Investigating Officer at the place of occurrence, Superintendent of Police, Bathinda, had visited the spot and that the names of the accused were not disclosed by him to the Superintendent of Police. However, we are of the view that this aspect does not amount to any serious consequence. In his cross-examination, D.W. 3 Gurbax Singh states that there were about hundred telephones in the village and he does not know if police was informed immediately after the occurrence. He further states that Mr. Jain S.P. and his reader reached the spot prior to the arrival of the Investigating Officer. They had seen the place of occurrence and had inquired from the people in the village but the S.P. did not record their statements. Therefore, it is pertinent to note that Mr. Jain S.P. was not conducting the investigation or recording any statement of either Gurbax Singh or that of others who were present there. The Investigating Officer states that he did not know if the Superintendent of Police had visited the spot earlier to him. It may also be noticed that Mr. Jain, Superintendent of Police has not been examined by defence either. In the face of other substantive evidence on record which proves the guilt of the accused, the non-examination of the Superintendent of Police is hardly of any significance from which the accused could derive any benefit.
25. For the reasons aforementioned, we are of the considered view that prosecution has proved its case against the accused beyond any reasonable doubt. Hired killing is on increase in the society, which needs to be checked with utmost urgency by all concerned. Undoubtedly, the persons indulging in such crimes should be severely punished. At the same time, it is a settled principle of law that capital sentence can be awarded by the Court in 'rare of the rarest cases.' The contention of the learned counsel appearing for the revision-petitioner that the present case falls in such category, cannot be sustained. The punishment awarded by the learned trial Court meets the ends of justice. We do not propose to interfere in the finding of conviction and order of sentence, as recorded by the learned trial Court. The judgment of the trial Court is, thus, affirmed.
26. For the reasons aforestated, both the appeals and the revision-petition are dismissed.