Mathur, J.
1. This appeal is directed against the judgment dated 22.1.1998 passed by the Sessions Judge, Hanumangarh convicting the appellants Kulwant Singh for offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-; in default of payment to further undergo three months simple imprisonment. Appellant Jaswant Singh has been convicted for offence under Section 302/34 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-; in default of payment to further undergo three months simple imprisonment.
2. The prosecution case as unfolded during the trial is that out of two sons of deceased Harnam Singh, the first son Niranjan Singh died two months prior to the date of incident leaving behind a widow, two sons and two daughters. Niranjan Singh's wife used to stay with deceased Harnam Singh. The other son P.W. 5 Ram Singh used to stay separately. The in-laws of late Niranjan Singh, who were camping at the house of deceased Harnam Singh for many days and demanding the share of land of late Niranjan Singh for the benefit of the widow. With respect to the said dispute a Panchayat was also convened. On 25th October, 1995, P.W. 5 Ram Singh lodged a First Information Report at about 12:15 P.M. at Police Station, Pili Banga stating inter alia that about 6-7 days back, appellant Jaswant Singh visited their house and insisted for the partition of the land and to give share of late Niranjan Singh to his widow. On 23.10.95, Jaswant Singh, while leaving for his village Indragrah gave a threat to deceased Harnam Singh that he should part with the land falling in share of his sister otherwise he will have to face the dire consequences. He also stated that on the last evening, his father had gone to the Tillage Chak 22 MOD to guard the cotton crop. In the early morning at about 4:00 his neighbour, P.W. 3 Amrik Singh and P.W. 2 Jarnail Singh came to his house and informed that in the night at about 10:30 or 11:00 the accused appellants Jaswant Singh and Kulwant Singh went to his field and shot down his father. He along with some of the villagers P.W. 1 Dharam Singh, Ujagar Singh, P.W. 8 Gurdev Singh went to the spot. He found the dead body of his father lying on the cot. He stated that his father has been murdered by Jaswant Singh and Kulwant Singh by gun shot fire. On this information, police registered a case for offence under Sections 302, 34 I.P.C. and Section 27 of the Arms Act. The police prepared the inquest report and sent the dead body for post-mortem. During the investigation, police recovered a twelve bore gun with licence from appellant Jaswant Singh. A Gandasi and a scooter was recovered in pursuance of the information given by appellant Kulwant Singh. After usual investigation, police laid charge-sheet against the appellant for offence under Sections 302, 302/34 I.P.C. and Section 3/25(1B)(A) and 27 of the Arms Act.
3. The appellants denied the charges levelled against them and claimed trial. The prosecution to prove the charges levelled against the appellants examined 12 witnesses and produced some documents. The appellants in their statements under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them. The trial court acquitted Kulwant Singh of the offence under the Arms Act on the ground that it was not recovered from his exclusive possession. However, relying on the testimony of the two eye witnesses namely P.W. 2 Jarnail Singh and P.W. 3 Amrik Singh, the trial court found the charges levelledagainst the appellants proved, accordingly convicted and sentenced in the manner noticed above.
4. Assailing the conviction, it is contended by Mr. N.L. Joshi learned counsel for the appellants that a careful scrutiny of the statements of two eye witnesses i.e. P.W. 2 Jarnail Singh and P.W. 3 Amrik Singh will reveal that they are planted witnesses. He has also pointed out serious infirmities in the prosecution case. On the other hand learned Public Prosecutor has supported the judgment of the trial court.
5. The defence has not disputed the fact of homicidal death of Harnam Singh. P.W. 4 Dr. Ram Lal has stated that he conducted the post-mortem of the dead body of deceased Hamam Singh aged 85 years and noticed the following injuries:-
(1) A lacerated wound on right maxillary area below and lateral to the lower eye lid 1-1/4 'x1/8' x1/8'.'
(2) A lacerated wound on left forearm lower part posterior ulnar side 3/4 'x1/8' 'x1/8'.
(3) A lacerated (gun shot) wound (enterance) in epigastrium midline upper part 2' x 1 3/4' x bone deep.
(4) A lacerated (gun shot) wound (enterance) on chest right of midline middle part anteriorly with fracture (hole) of sternum 1 1/2' x1 1/4' x (cavity deep 7' with blackening (tatooing) of sterm around.
(5) A lacerated (gun shot) wound (enterance) on chest midline middle part anteriorly (near No, 4 Injury) with blackening (tatooing) of skin around with fracture (hole) of sternum 1 'x1' (cavity deep 7.' '
(6) On opening chest- Thoracic cavity full of blood, heart, both lunge lacerated.
(7) On opening abdomen, liver lacerated and blood present in abdominal cavity.
(8) Large No. of pallets (1/8' x 1/8') & pieces of Khokha and bone pieces recovered from Thoracic cavity.
He has proved the post-mortem Ex.P3. In his opinion the deceased died of gun shot injuries on the vital parts (heart, lungs, liver) leading to haemorrhage & shock.
6. P.W. 1 Dharam Singh, P.W. 6 Ahamaddin, P.W. Balvir Singh, P.W. 9 Kesrichand, P.W. 11 Laxmi Narayan, P.W. 12 Geegararn are forma! witnesses. P.W. 10 Tarachand is the S.H.O., Police Station, Pili Banga. He has given the details of the investigation. P.W. 8 Gyrdev Singh has stated that he knew deceased Harnam Singh and his daughter-in-law Ranjit Kaur. He also stated that a village panchayat was convened with respect to share of land to be given to the appellants' sister. The appellants were insisting 'for giving the land to their sister. The panchayat failed to resolve the dispute. Thereafter, he heard of the murder of Harnam Singh. He went to the spot and found the dead body of Harnam Singh lying on the cot. In the cross-examination, he admitted that Harnam Singh was brother in distant relation. He also admitted that his statement was recorded by the police after 3-4 days.
7. P.W. 5 Ram Singh is the son of deceased Harnam Singh. He stated that his Bhabhi the wife of late Niranjan Singh used to stay with his father. He was residing separately. After the death of his brother Niranjan Singh, the appellants Kulwant Singh and Jaswant Singh used to stay with his Bhabhi. 6-7 days prior to the incident a panchayat was convened for giving the land to the widow of the share of Naranjan Singh. The deceased Harnam Singh took the stand that he will get the land transferred only in the name of his grant sons. He also stated that the appellants Jaswant Singh and Kulwant Singh gave threat of life to deceased Harnam Singh. He further reiterated whatever he stated in the F.I.R. In the cross-examination, he admitted that after the death of his father Harnam Singh 1/5th share belonging to two daughters and two sons has beenmutated in the name of his Bhabhi. He also admitted that after the death of his father, he was the sole surviving member in the family. He dented the suggestion that after the death of his brother Niranjan Singh, he wanted to grab the entire land of his father. He also denied the suggestion that he committed the murder of his father with a view to take possession of the entire land. He also denied the suggestion that he has falsely implicated the brothers of his Bhabhi so that she may not prosecute her case.
8. P.W. 2 Jarnail Singh and P.W. 3 Amrik Singh are the two important witnesses as they have been examined as eye witnesses. P.W. 2 Jarnail Singh has stated that his field in Chak 22 M.O.D. is adjacent to the field of deceased Harnam Singh. At about 9:00 P.M, after taking dinner, he along with Amrik Singh went to the field to guard the cotton crop. Both of them after taking round of the filed (cs ekjdj) were returning to the house at about 10:30 or 11:00 P.M. A hue and cry was heard by them, when they were passing through in front of the Dhani of Harnam Singh. Harnam Singh was sitting on the cot. Appellants Kulwant Singh and Jaswant Singh were standing. Kulwant Singh was armed with a gun and Jaswant Singh with a Gandasi. Appellants were pressurising Harnam Singh to transfer theland of their brother-in-law in their name. Harnam Singh refused to oblige them. They gave him threat of life. Thereafter Kulwant Singh shot fire at Harnam Singh. Jaswant Singh inflicted injury near the left eye of Harnam Singh. Thereafter, both the appellants took heels towards the northern side. They reached upto the Head chasing them. They took speed riding on a scooter parked near the Head. He also staled that they could see the accused persons in the flash of the Torch. He also stated that in the night they reached to the village and narrated the incident to Ram Singh, the son of deceased Harnam Singh. He admitted in the cross-examination that the police did not obtain his signatures on any of the memoes on the spot. He stated that the distress call heard by them from a distance of half Bigha. He admitted that from his field, he was returning to the house by road. The distance between the field of Harnam Singh and the road is about 3 Bighas. He also stated that hearing the distress call, he flashed the Torch. He, however, admitted that the flash was not thrown on the accused persons.
9. He also admitted that he did not inquire from Harnam Singh as to whom, he was talking. He also admitled that the Dhani of Harnam Singh is in corner of Kila No. 13. He stated that the Bighas consists of 165 ft. He also stated that he could identify the appellants in the flash of the Torch light. He also stated that they kept the Torch on the accused persons for about 1-11-1/2 Minute. He also admitted that inspite of the flash of the Torch thrown on the accused persons, they did not challenge them. They did not even ask to put off the Torch. He also stated that first they chased appellants and then went to inform Ram Singh about the incident. He also stated that he chased the appellant for about 6-7 Murabas. He further stated that it took about two hours to reach near the Head. From the Head, it took about 2-3 hours to reach in the village. He admitted that no empty cartridge, pellets etc. were recovered from the spot. He further stated that he did not narrate the incident to any body.
10. P.W. 3 Amrik Singh has given the statement almost on the line of P.W. 2 Jarnail Singh. He stated that Kulwant Singh fired the gun shot at Harnam Singh. Another person inflicted injury by Gandasi. However, he did not intervene. He further stated that two rounds of gun shot were fired later on. After causing injuries, the appellants ran away towards the Canal. He chased them along with Jarnail Singh. They boarded the scooter parked near the head of the Canal. In the cross-examination, he admitted that P.W. 5 Ram Singh is his brother. He also admitted that he had taken 4 Bighas land on contract from Ram Singh. He admitted that the appellants did not threat Harnam Singh in their presence. He also stated that near the Dhani of Harnam Singh, there are many other Dhanies. He also admitted that the gun with the accused persons was not of a nature which could fire four rounds at a time. He stated that it was a double barrel gun. He also stated that after the injuries caused by Gandasi, there were two more gun shot fire. He also stated that the height of the wall of the Dhani is about 7 ft. He alsostated that after the gun shot and before arrival of the police, he did not try to ascertain if Harnam Singh was dead or not.
11. The ocular account given by PW2 Jarnail Singh and P.W. 3 Amrik Singh does not inspire confidence. It is doubtful if they could have heard the talks between the deceased Harnam Singh and the appellants and further could actually witness the incident if look at the distance between the place from which they alleged to have seen the incident and the place of incident. Initially P.W. 1 Jarnail Singh stated that he heard the hue and cry from a distance of half Bigha. Later on he admitted that they were returning to the village through road. He further admitted that the distance between the road and place of incident was 3 Bighas. He also admitted that one Bigha consists of 165 ft. Therefore, it comes to 494 or to say 500 ft. It is difficult to comprehend that these two witnesses could hear the talks between the appellants and the deceased from a distance of 500 ft. It is also difficult to comprehend that even if in the flash of Torch they could see the appellants from a distance of 500 ft. It is significant to notice that P.W. 3 Amrik Singh has admitted that height of the wall of the Dhani was 7 ft. Thus, there was an obstruction of 7 ft. height. The ocular account does not find corroboration from the medical evidence as well. Both the witnesses have stated that Jaswanl Singh gave a Gandasi blow to deceased Harnam Singh which struck on his head near the left eye. The post-mortem report Ex.P3 does not show any injury on the person of deceased Harnam Singh caused by sharp edged weapon. It may be argued that the Gandasi blow might have been given from the opposite side. The positive case of the prosecution is that Gandasi blow was given from the sharp edged side because the Gandasi having blood spots on its blade has been recovered in pursuance of the information given by Jaswant Singh. As per the F.S.L. report the blood on the blade of the Gandasi is of human origin. It clearly shows that police has fabricated not only the recovery of the Gandasi but blood stains on its blade. Thus, infirmities gains weight in the context of delay in filing the F.I.R. Though the incident took place at about 11:00, but the witnesses could reach in the village only at 4:00 A.M. They have tried to explain this time by saying that they were chasing the accused appellants. This falsifies from the fact that according to the prosecution the appellants took heels towards the northern side, but on that route foot steps of only two persons have been noticed. If the witnesses would have followed them there would have been foot steps of four persons. Even after 4:00 A.M. inspite of the fact that the distance between the village arid the police station is only 25 Kms., it took them of more than 8 hours to lodge the F.I.R. It clearly appears that this time has been utilised in falsely implicating the appellant.
12. There is one more important aspect of the case. The gun alleged to have been recovered in pursuance of the information given by Kulwanl Singh. The trial court found that the gun was not in the exclusive possession of appellant Kulwant Singh. In view of this finding the trial court acquitted accused appellant Kulwant Singh for offence under the Arms Act. However, he has utilised the evidence of recovery of gun to connect the appellant with the murder of Harnam Singh. Since gun has not been recovered from the exclusive possession of the appellant, the trial court has committed an error in relying on evidence of recovery of the gun. The report of the Ballistic expert Ex.P.34 is also not definite if the gun was in serviceable condition. Thus, the ocular statement of P.W. 2 Jarnail Singh and P.W. 3 Amrik Singh carry inherent infirmities and weakness as indicated above and further does not find corroboration from independent sources and as such the conviction of the appellants on the testimony of these two witnesses cannot be sustained. The prosecution has failed to establish the charge of murder against both these appellant beyond reasonable doubt.
13. Consequently, this appeal is allowed. The appellants are acquitted of offence under Section 302, 302/34 I.P.C. The appellant Kulwant Singh is in Jail, he shall be released forthwith if not required in any other case. The appellant Jaswant Singh is on bail. His bail bounds stand cancelled.