Judgment:
Shyam Sunder Byas, J.
1. The appeal is directed against the judgment of the learned Additional Sessions Judge, Hanumangarh dt. May 15, 1976, by which the six appellants Jangirsingh, Jaswantsingh, Thansingh, Sadulsingh, Balbirsingh and Jagroopsingh were convicted under Sections 302, 302/149, 364, 364/149, 148 and 323 of the Penal Code and Section 27 of the Arms Act and sentenced to various terms of imprisonment, the highest being that of imprisonment for life under Section 302 or 302/149, IPC.
2. Briefly stated, the prosecution case is that the deceased-victim Banta-singh, aged about 25 years, was the brother of PW 2 Karnelkaur and husband of PW 3 Milkiyat Kaur. They were living in village Singhpura P.S. Lakuwali district Sri Ganganagar. The appellants are also residents of the same village there arose a dispute between the deceased and the appellants over a way right in some lane. This resulted in inimical relations between them and the deceased.
3. At about 1.30 or 2.00 p.m. on February 8, 1974, PW 2 Karnel Kaur, PW 3 Milkiyat Kaur, the deceased-victim Bantasingh, PW 5 Leelu, PW 6 Chhindasingh and PW 7 Dhandhu were working on the cane crusher of Sarwansingh Niranjan Singh, as shown in site plan Ex. P. 13. The appellants accompanied with Chandsingh, Thakursingh and Bhagwantsingh came there armed with lethal weapons. Accused Jagroopsingh had a lathi while the others had pistols and guns. They forcibly lifted Bantasingh and took him to the Kotha of accused Balbirsingh, situate nearby. Karnelkaur offered some resistence when her brother was lifted by the appellants and their companions. Accused Jagroopsingh struck a blow on her left foot. Karnelkaur and Milkiyatkaur also followed the appellants and went upto the Kotha of accused Balbirsingh. The culprits, after taking Bantasingh in the Kotha, felled him down on the floor and started firing at him. Both the ladies were not allowed to enter the Kotha. Accused Jagroopsingh and Chandasingh detained the ladies outside by catching hold of them. There was indiscriminate firing in the Kotha at Bantasingh, as a result of which he sustained multiple injuries. He became unconscious there. After some time, the appellants and their companions lifted Bantasingh and threw him outside the house of Sarwansingh Niranjansingh. Both the ladies went there and took Bautasingh to their house. After some time, PW 4 Amarjeet Singh, who is a brother of the deceased, came to the house. He was apprised of the incident. He managed a jeep and Bantasingh was taken for medical treatment to Sri Ganganagar, where he was admitted in the General Hospital. The two ladies also accompanied Bantasingh and went to Sri Ganganagar in the same jeep. The doctor on duty examined the injuries of Bantasingh. The doctor gave him medical treatment. Bantasingh, however, did not survive and passed away at about 1.00 a.m. on February 9, 1974. The doctor informed the police by letter Ex. P. 1 about the death of Bantasingh. The Station House Officer deputed Assistant Sub-Inspector Surya Prakash (PW 1) to the hospital. PW 1 Surya Prakash came to the hospital and prepared the inquest report of the victim's dead body. He also seized and sealed the blood-stained clothes of the deceased. PW 4 Amarjeetsingh went to Police Station, Lakhuwali and verbally lodged report Ex. P. 4 of the incident at about 10.00 a.m. on February 9, 1974. The police registered a case and took up the investigation. The post-mortem examination of the victim's dead body was conducted by the Medical Jurist Dr. Goyal (PW 12). He found the following injuries on the victim's dead body:
External-
(1) Gun shot (entry) wound 1/4' x 1/4' on the front of right elbow joint;
(2) Gun shot exit wound 1/2' x 1/2' on the posterior aspect of right elbow joint;
(3) Gun shot entry wound 1/4' x 1/4' on the medial aspect of left elbow;
(4) Gun shot wound (exit) 1/2' x 1/2' on the lateral aspect of elbow;
(5) Gun shot entry wound 1/2' x 1/4 x 2-1/2' below the left knee;
(6) Gun shot exit wound 1/2' x 1/2' on the lateral aspect of left chin;
(7) Gun shot entry wound 1/4' x 1/4' on the right tibeal region anterior aspect of tibeal pro trubrance.
(8) Gun shot exit wound 1/2' x 1/2' on the right caugh region;
(9) Bruise/oblique in direction 8' x 4' on the posterior aspect of right elbow and upper aspect of fore-arm;
(10) Bruise with multiple abrasions oblique in direction 6' x 3' on the left elbow;
(11) Lacerated wound oblique in direction 1/2' x 1/8' x bone deep in the mid of left leg;
(12) Lacerated wound oblique in direction 3/4' x 1/4' x bone deep on the anterior aspect of right leg;
(13) Abrasion vertical in direction 1-1/2' x 1' on the medial aspect of right thigh;
(14) Bruise oblique in direction 2' x 1' at lower right rib on the back of chest;
Internal-
(1) Fracture of upper 3rd right fibula bone;
(2) Fracture of upper end of right radious bone in multiple pieces;
(3) Fracture of supra condylar of right side;
(4) Fracture of left supra condylar region;
(5) Fracture of upper end of left ulna bone;
4. The doctor also noticed scorching and tatoooing on the entry wounds caused by the gun shots. He further found that the wounds of entry and exist were forming a track. All the injuries were ante-mortem. The doctor was of the opinion that Rantasingh had died of actue shock due to multiple fractures of bones and multiple injuries on the body and bleeding from the wounds. The injuries were stated to be sufficient in the ordinary course of nature to cause death. The post-mortem report prepared by the doctor is Ex. P. 24. The accused persons were arrested. In consequence of the information furnished by the accused-appellant Jagroop Singh, a lathi was recovered. In consequence of the information furnished by accused Balbirsingh, one pistol was recovered. Accused Thakursingh, Bhagwan Singh and Jangir Singh produced gun, rifle and pistol along with some live cartridges. The fire arms were sent for examination to the State Forensic Science Laboratory, Jaipur. On examination, two of the fire arms were found in working order while the third was found out of working order. On the completion of investigation, the police presented a challan againsi the six appellants and their companions Chandsingh, Thakur Singh and Bhagwan Singh in the Court of Munsif and Judicial Magistrate, Suratgarh, who, in his turn, committed the case for trial to the Court of Sessions Judge, Sri Ganganagar. The case was transferred for trial to the Addl. Sessions Judge, Hanumangarh. The Addl. Sessions Judge framed charges Under Section 302, 364, 342, 201 & 148, IPC and Section 27 of the Arms Act against them, to which they pleaded not guilty and claimed to be tried. The accused denied that they had abducted Bantasingh from the cane crusher or took him in a Kotha and fired shots at him. According to them, the innocent persons have been falsely implicated. In support of its case, the prosecution examined 12 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Jndge found no incriminating material against accused Chand Singh, Thakur Singh and Bhagwan Singh. They were consequently acquitted. The Sessions Judge found the charges duly established against the six appellants. They were consequently convicted and sentenced. Aggrieved against their conviction, the appellants have come-up in appeal.
5. We have heard Mr. M.L. Garg, learned counsel for the appellants and Mr. S.K. Mathur, the learned Public Prosecutor. We have also gone through the case file carefully.
6. Before dealing with the contentions raised by Mr. Garg, it would be proper to mention that the prosecution examined as many as five witnesses to prove the occurrence and the appellant's participation in it. They are PW 2 Karnelkaur, PW 3 Milkiyatkaur, PW 5 Leelu, PW 6 Chhinda Singh and PW7 Dhadhu. It was alleged that all these persons and the deceased-victim Bantasingh were working at the cane crusher of Sarwansingh Niranjansingh at the place shown by mark 'J' in site plan Ex. 13. The names of all of them have been mentioned in the FIR Ex. P 4 lodged by the victim's brother Amarjeetsingh. Unfortunately, three of them, viz, PW 5 Leelu. PW 6 Chhindasingh and PW7 Dhadhu turned hotsile and lent no support to the prosecution. They refused to state anything against the appellants or their companions, though they admitted that they were working at the cane crusher of Sarwan Singh Niranjan Singh. Despite their being cross-examined by the prosecution, nothing could be elicited from them which may be helpful to the prosecution. PW 2 Karnel kaur and PW 3 Milkiyatkaur, of course, stuck to the prosecution version of the incident. Keeping this background in view, it was contended by Mr. Garg that the conviction of the appellonts is wholly erroneous and unsustainable. It was argued that the evidence of PW 2 Karnelkaur and PW 3 Milkiyatkaur is hopelessly discrepant and inter se contradictory. Their evidence is not natural. It was further argued that the trial Court wrongly treated them as witnesses of truth. Their evidence is such that it fails to inspire confidence. It was argued by Mr. Garg that the manner in which the incident is alleged to have taken place, according the two eye witnesses, could not have taken place and that in itself is sufficient to throw away their evidence. The prosecution is also guilty of fabricating the documents and with-holding the material witnesses.
7. It was, on the other hand, contended by learned Public Prosecutor that the hostile attitude of the three witnesses does not diminish the evidentiary value of the testimony of PW 2 Karnel Kaur and PW 3 Milkiyat Kaur. Though they are close relatives of the deceased-victim, it cannot be expected from them that they would leave the real culprits and substitute the appellants in their place. We have taken the respective submissions into consideration.
8. It would be useful briefly to read the evidence of these two lady witnesses.
9. PW 2 Karnel Kaur deposed that at about 2.00 or 2.30 p.m. on the day of the occurrence, she, her brother Bantasingh, his wife Milkiyatkaur (PW 3), Dewa, Dhadhu (PW 7) and Leeliya (PW 5) were working at the cane crusher of Sarwansingh Niranjansingh. The appellants accompanied with Chandsingh, Thakursingh and Bhagwansingh came there. Accused Jagroopsingh had a lathi while the remaining eight had fire arms like guns, pistols and revolvers. They bodily lifted Bantasingh. She offered resistence. Accused Jagroopsingh struck a blow of lathi on her left foot. Thereafter the culprits took Bantasingh into the Kotha of Balbirsingh and felled him down on the floor. They started firing at him and made indiscriminate firing. As a result, Bantasingh sustained multiple injuries on his body and became unconscious. She and Milkiyat Kaur (PW 3) remained standing out-side the Kotha as they were forcibly held there by accused Jagroopsingh and Chandsingh. The culprits thereafter brought Bantasingh out from the Kotha and threw him out-side the house of Niranjansingh. She and Milkiyat Kaur lifted Bantasingh from there and took him to their house. He remained unconscious and never gained senses thereafter. The same facts were stated in examination-in-chief by PW 3 Milkiyat Kaur. The learned Additional Sessions Judge found their evidence reliable and credit-worthy. It was on the basis of the evidence of these two lady witnesses that the appellants were convicted. Mr. Garg has taken us through the evidence of these two witnesses and pointed out that in fact they had not seen the incident and were made-up witnesses. We have carefully scrutinized the evidence of these two lady witnesses and are of the considered opinion that their evidence does not inspire confidence. When the evidence of these two lady witnesses is scrutinized and analysed at some length, it reveals many discrepancies, contradictions and omissions on material points and essential features of the prosecution story.
10. PW 2 Karnel Kaur deposed that she was given a blow by accused Jagroopsingh at the cane crusher where she was working. In direct contradiction to it, PW 3 Milkiyat Kaur stated that Karnel Kaur was struck a blow on her left foot out-side the Kotha of accused Balbirsingh, when she and Karnal Kaur went there to save Bantasingh. PW 2 Karnel Kaur deposed that the wife of accused Balbir Singh was present in the Kotha when Bantasingh was taken there and felled down. This fact has been denied by Milkiyat Kaur (PW 3), who categorically stated that the wife of accused Balbirsingh was not there in the Kotha, PW 2 Karnel Kaur stated that the Kotha was vacant with no goods there in, where as PW 3 Milkiyatkaur stated that there were cots, big boxes and other domestic goods in that Kotha. PW 2 Karnel Kaur deposed that the appellants and their companions (acquitted accused) fired the shots at Bantasingh in the Kotha while remaining standing there in. Accused Jagroopsingh and Chandasingh held them back and did not allow them to enter the Kotha. In direct contradiction to it, PW 3 Milkiyatkaur deposed that accused Bhagwansingh, Thakursingh and Chand Singh (acquitted accused) went on the roof of the Chobara of accused Jangir Singh and fired the guns and pistols from there, which hit Bantasingh, who was lying down there in the Kotha of Balbirsingh. This contradiction is so material and significant that it cannot be lightly brushed aside. The firing by three persons from the roof is in itself such a big event that it could not escape the notice of Karnel Kaur (PW 2), if she had really seen the incident.
11. PW 2 Karnel Kaur deposed that they did not enter the Kotha of accused Balbirsingh where the victim Bantasingh was felled down and shot dead. She did not state that she and Milkiyat Kaur went into the Kotha and tried to protect Bantasingh or render any help to him. In direct contradiction to her, Milkiyat Kaur (PW 3) stated that she and Karnelkaur went into the Kotha and fell on him to protect him. It would be useful to quota the relevant passage from her testimony in her own words:
ge tc ij fxj jgs Fks vkSj vfHk;qDrx.k cUrkflag dks pksV ekj jgs Fks ;kfu ge cUrkflag dks cpkus ds fy, chp&cpko; dj jgs Fks--------------------eS vkSj dlsu daoj ,d nks nQs dksBs ds vUnj x, FksA
Curiously enough, these facts have not been stated by PW 2 Karnelkaur, according to whom, she and Milkiyatkaur remained out-side the Kotha through-out the incident. Their going into the Kotha is such a glaring fact that it could not escape the notice of Karnelkaur. This contradiction is again significant and vital and destroys the credibility of both the lady witnesses.
12. There are then some other facts too, which cannot be lost sight of while evaluating and sifting the evidence of the two lady witnesses. Both of them stated that when they lifted Bantasingh & carried him to their house, the clothes they were wearing got stained with the blood of the wounds of Bantasingh. They showed these clothes to the Investigating Officer. These blood-stained clothes of the ladies would have furnished a valuable corroboration to their testimony. But strangely enough, their blood-stained clothes were not seized and sealed by the Investigating Officer. Both the lady witnesses stated that when they were carrying Bantasingh in an injured condition to their house, they met Smt. Shamo in the way. Mst. Shamo was, thus, a material witness to afford valuable corroboration to their testimony. It is astounding that though Mst. Shamo has been cited as a witness in the Calendar of witnesses by the police she was not produced in evidence for the reason best known to the prosecution. Her non-production in evidence speaks heavily against the prosecution. Both the lady witnesses stated about the injuries caused by the fire-arms to Bantasingh. The post-mortem examination report as well as the testimony of Dr. Goyal PW 12 show that there numerous bruises, lacerated wounds and abrasions in addition to the gun shot injuries on the body of Bantasingh. Both the witnesses PW 2 Karnel Kaur and PW 3 Milkiyat Kaur are silent as to how these bruises, lacerated wounds and abrasions were caused to Bantasingh. Had they seen the actual incident, it was expected from them to state as to who caused these injuries to Bantasingh. Their silence in respect of these injuries strongly suggest that they had not seen the incident at all. Site plan Ex. P. 13 and the site inspection memo Ex. P 13A were prepared on February 9, 1974 at about 2.30 p.m., as stated by the Investigating Officer PW 11 Jai Bhagwan. Ex. P. 13 shows that it was prepared at the instance of PW 2 Karnel Kaur. PW 2 Karnel Kaur, in her cross-examination, admitted that she remained at Sri Ganganagar till the cremation of Bantasingh's dead body took place at about 4.00 p.m. on February 9, 1974. She stated that she reached village Singhpura in the evening of February 9, 1974. It is sufficient to show that Ex. P 13 was not prepared at her instance as mentioned in it. This fact throws considerable doubt on the fairness of investigation and the genuineness of the site plan Ex. P. 13.
13. In Ex. P. 13 and Ex. P. 13-A, it has been mentioned that the two lady witnesses saw occurrence which took place in the Kotha of Balbirsingh (accused) from the place shown by mark 'C' in site plan Ex. P 13. This place 'C' is situated out-side the wall and is at considerable distance from the Kotha of Balbirsingh. Both these witnesses gave up this version of the prosecution and denied that they saw the incident from the place 'C' in site plan Ex. P. 13. They stated that they remained standing just two feet away from the door of the Kotha of accused Balbirsingh and saw the incident from there. It is in direct contradiction of the facts stated in Ex P13. Both the lady witnesses, thus, tried to reduce the distance from where they saw the occurrence and this improvement casts serious dobut on their veracity. Both the lady witneeses stated that there was indiscriminate firing in the Kotha. According to PW 3 Milkiyat-kaur, there were atleast 12/13 shots in all & they all hit Bantasingh. She stated
12@13 Qk;j cUrkflag ds utnhd fd;s vkSj reke ds reke cUrkflag ds yxs A
But this fact is not borne out by the medical evidence and is in direct conflict with it. Only four entry wounds were found on the person of Bantasingh. This discordance between the medical evidence and the evidence of the ocular witnesses speaks heavily against them and shows that the two lady witnesses had not seen the incident as claimed by them. It is his again highly astounding that though there was indiscriminate firing, in which at atleast 12/13 shots were fired and all of which are alleged to have hit Bantasingh, Bantasingh received injuries on his non-vital parts. Only one gun-shot injury was found on his left hand, right hand, left leg and right leg. The gun shot injuries, as the medical evidence reveals, are of small dimensions. It is strange that only the hands & legs of Bantasingh were injured due to gun shots and the whole body remained uninjured, If there was indiscriminate firing, it is expected that the pellets in bullets must have hit Bantasingh on many parts of his body. The gun shot injuries found on the victim's deadbody suggest that he was forcibly held in a particular position. But both the lady witnesses did not speak so. This again is a big infirmity in the evidence of these two lady witnesses. The incident is alleged to have taken place in the broad day light on a noon and yet no independent person of the locality was examined by the police. There were many rounds of shots and the incident must have caused a big stir in the village. But no resident of the village was examined to show that Bantasingh was lifted, taken in the Kotha of accused Balbirsingh, was fired at and his dead body was thrown out-side the house of Sarwansingh Niranjansingh. This fact cannot be lost sight of while evaluating and assessing the evidence of the two lady witnesses.
14. The motive alleged is grossly inadequate to push the appellants to commit the crime. It is alleged that there was a dispute between the parties over a way right in the lane. This dispute is so minor that it could not incite the appellants to commit the murder of Bantasingh.
15. We are quite conscious that the testimony of a witness should not be taken to be a ground to reject it simply for the reason of his close relationship with the deceased-victim. The law does not contemplate or permit the mechanical rejection of the evidence of a witness simply because he happens to be a close relative of the deceased-victim. But at the same time, prudence enjoins that the evidence of a relative witness should be scrutinized with circumspection and more than ordinary care. We are also fully aware that trifling discrepancies on minor points or details are natural and should not be given undue importance. Rather they should be ignored. But discrepancies in the statements of the witnesses on material points, essential features and broad aspect of the prosecution story should not be lightly passed over as they seriously affect the value of the testimony. When discrepancies, variations, contradictions, improvements and omissions pile-up and relate to essential and broad features of the prosecution story, they assume importance and should be taken into consideration in the process of evaluating the evidence of the ocular witnesses.
16. Here in the instant case, the discrepancies, contradictions, variations and omissions are numerous and relate to the main core of the incident. The contradictions, variations etc., pointed out above, cast serious doubt on the truthfulness of both the lady witnesses and they strongly suggest that they have, in fact not seen the actual occurrence. The trial Court has failed to take note of these serious infirmities in the prosecution case. These infirmities cast legitmate doubt in the truthfulness of the prosecution story. The ocular account of the eye witnesses is wholly unreliable. Their evidence is not beyond reproach and above the board. They have unscrupulously spoken the untruth on all vital points which have polluted their testimony to the core. Their evidence does not inspire confidence.
17. It may be pointed out that the learned Additional Sessions Judge has found the evidence of both the lady witnesses unreliable as against the accused Chandasingh, Thakursingh and Bhagwansingh and, therefore, recorded their acquittal. It is true that the testimony of a witness may be accepted in part and rejected in part. But when a part of the testimony is rejected, there should be strong and convincing reasons to accept the residue as against the other accused. Here in the instant case, when these two lady witnesses were found unreliable in respect of the three acquitted accused persons, strong and convincing reasons were required to accept their testimony against the appellants. No such strong and convincing reasons are there, especially when there is no corroboration to their testimony.
18. For the reasons stated above, we are unable to maintain the conviction of the appellants for the various offences they were charged with. They are entitled to acquittal.
19. In the result, the appeal is allowed. The judgment of the learned Additional Sessions Judge, Hanumangarh, convicting and sentencing the accused (1) Jagirsingh, (2) Jaswantsingh, (3) Balbirsingh, (4) Sadulsingh, (5) Jagroopsingh, and (6) Thansingh is set aside and they are acquitted of the offences they were charged with. They are already on bail and need not surrender. Their bail bonds shall stand discharged.