JUDGMENT 1. - By this judgment dated November 28, 1981 the Additional Sessions Judge(1), Hanumangarh convicted the accused Pritam Singh under Sections 302/34, 307/34 and 449, Indian Penal Code and sentenced him to imprisonment for life on the first count and rigorous imprisonment for ten years on the second count and seven years' on the last count. Sentences were directed to run concurrently. 2. The incident is alleged to have taken place at about 8.00 a.m. on July 6, 1960 in village Gaddar Khera P.S. Hanumangarh district Ganganagar, in which one Dularam Harijan was hacked to death and severe gun-shot injuries were caused to one woman. 3. In brief, the prosecution case is that PW 1 Kripalsingh and PW 2 Smt. Nihar Kaur and husband and wife and PW 3 Samshersingh is their son. Kripalsingh has five sons and they all lived jointly in village Gaddar Khera. PW 4 Modansingh is also a resident of the same village. He had a brother Arjunsingh by name. Arjunsingh has three sons Jojendrasingh, Kakasingh and the appellant Pritamsingh Modansingh (PW 4) owned 151/2 Bighas agricultural land, which he sold to PW 1 Kripalsingh by a registered sale-deed. Arjunsingh and his sons did not cherish this sale and possession, therefore, could not be delivered to Kripalsingh by Modansingh. This resulted in litigation between Arjun Singh and Kripalsingh. A few days before the occurrence, Arjunsingh plunged a spear to Kripalsingh. A case was registered in respect of that incident against Arjunsingh. The deceased Dularam happened to be a prosecution witness on behalf of PW 1 Kripalsingh Arjunsingh and his sons, therefore, started harbouring an ill-will against Dularam. 4. At about 8.00 a.m. on July 6, 1960, PW 1 Kripal Singh and Dula Ram were sitting in the courtyard of the house of Kripalsingh. PW 2 Smt Nihar Kaur was collecting cow dung. PW 3 Sameshersingh was also working with her. All of a sudden, there was a gun shot. Kripalsingh and Dularam got-up and ran for safety. Kripalsingh went in the kitchen while Dularam took shelter in the Kotha. Smt Nihar Kaur went towards the gate of her house. The appellant Pritamsingh accompanied with Kartarsingh and Kashmirsingh came to her and started beating her. Kakasingh, who had also come there, fired a shot at Smt. Nihar Kaur, which hit her left palm. Kripalsingh went in the kitchen while Dularam took shelter in the Kotha. Smt Nihar Kaur went towards the gate of her house. The appellant Pritamsingh accompanied with Kartarsingh and Kashmirsingh came to her and started beating her. Kakasingh, who had also come there, fired a shot at Smt. Nihar Kaur, which hit her left palm. Pritamsingh appellant, Kartarsingh and Kashmirsingh went in the Kotha where Dularam had taken shelter. Each of them had a kripan' (sword). They started inflicting blows to Dularam with their kripans. Dularam raised cries. The accused stopped inflicting blows to him only when he (Dularam) passed away. There alter the four miscreants, namely, Pritam Singh, Kashmirsingh, Kartarsingh and Kakasingh sped away hurriedly towards their house. Kashmirsingh and Kartarsingh were not the resident of village Gaddar Khera. They resided in Punjab and were brought by accused Pritamsingh & Kakasingh for their help Kripalsingh after when the miscreants left his house, went to Police Out Post, Sadulshahar, where he reached at about 12.30 Hours on the same day. He lodged verbal report Ex. P 1 of the occurrence. The police registered a case took-up the investigation. PW 6 Danasingh, who was then the Station House Officer, arrived on the spot & prepared the inquest report of the dead body of Dularam, which was lying in the Kotha of Kripalsingh. He also inspected the site and prepared the site plan. The blood stained soil was seized and sealed. The guns, which two of the miscreants had, and one of which was snatched by Smt. Nihar Kaur and Samshersingh from one of the miscreants, were seized and sealed. The injuries of Smt. Nihar Kaur (PW 2) were examined by Dr B.D. Jain the then Medical Officer Incharge, Government Hospital Sadulshahar. He found injuries caused by gun-shot and blunt weapons on her body. The injury report prepared by the doctor is Ex. P 14. The medico-legal autopsy over the dead body of Dularam was also conducted by Dr. Jain at about 5.30 p.m. on the same day. The doctor noticed the following ante mortem injuries: (1) Incised wound 51/2" X 31/2" in front of the neck running from one angle of the mandible thereby cutting the juglar and carotid vessels of both sides, trachea, larnyx and pharynx. Jain at about 5.30 p.m. on the same day. The doctor noticed the following ante mortem injuries: (1) Incised wound 51/2" X 31/2" in front of the neck running from one angle of the mandible thereby cutting the juglar and carotid vessels of both sides, trachea, larnyx and pharynx. Clotted blood present; (2) Incised wound 5/1-2" X 2" X bone deep on the left pariatal bone, A piece of fractured bone found entered into the brain substance; (3) Incised wound 7" X 2/1-2" X 1/1-2" starting just near the lobule of the left ear going to the accipital bone causing its fracture; (4) Incised wound 3/4" X 1/2" X 1/2" in the right infra clavicular fossa; (5) Incised wound 2" X 1/2" X 1/4" left fore-arm lateral aspect lower one third; (6) Incised wound 2" X 1/2" X 1/2" left arm back lower one third; (7) Incised would 1" X 1/2" X 1/4" left band medial aspect; (8) Incised wound 2" X 1/2" X 1/4" dorsum of right hand; (9) Incised wound 1/2" X 1/4" X ⅙" second knucle of the right thumb; (10) Incised would 1/2" X 1/4' X ⅙" first knucle of the right index finger. In the opinion of Dr. Jain, the cause of death of the victim was haemorrhage and shock due to cutting of big vessels and injuries to the vital organs. He was also of the opinion that injuries No, 1 and 2 individually and the remaining injuries collectively were sufficient in the ordinary course of nature to cause death. The post-mortem examination report prepared by him is Ex. P. 13. The police arrested Kaka Singh, Kartar Singh and Kashmir Singh. The present appellant Pritam Singh, however, could not be arrested on account of his absconding. On the completion of the investigation the police submitted a challan against the aforesaid three persons in the Court of the Sub-Divisional Magistrate, Hanumangarh, who committed the case for trial to the Court of Sessions. The trial was conducted by the learned Sessions Judge, Ganganagar. The learned Sessions Judge convicted all the aforesaid three persons. In appeal, Kashmir Singh was acquitted. However, the conviction of accused Kaka Singh and Kartar Singh under Sections 302/34 and 452, Indian Penal Code and the sentences passed thereunder were maintained by this Court, by the judgment passed on November 21, 1963. 5. The learned Sessions Judge convicted all the aforesaid three persons. In appeal, Kashmir Singh was acquitted. However, the conviction of accused Kaka Singh and Kartar Singh under Sections 302/34 and 452, Indian Penal Code and the sentences passed thereunder were maintained by this Court, by the judgment passed on November 21, 1963. 5. Accused Pritam Singh (appellant) ramained absconding and could be arrested on June 16, 1979, vide arrest memo Ex. P 10. A challan was submitted against him in the Court of the Judicial Magistrate, Hanumangarh, who in his turn, committed the case for trial. The learned Additional Sessions Judge (1), Hanumangarh framed charges under Sections 449, 302/34 and 307/34, Indian Penal Code against him, to which he pleaded not guilty and faced the trial. In support of its case, the prosecution examined nine witnesses and filed some documents. In defence, the accused examined one witness. The defence taken by him is that his father Arjun Singh gave him to Sadhus when he was ten/ eleven years old, Since then, he was living with the Sadhus. He denied his complicity in the incident. On the conclusion of the trial, the learned Additional Sessions Judge found the charges duly proved against the accused Pritam Singh. He was consequently convicted and sentenced as mentioned at the very out-set. 6. We have heard the learned amicus curiae and the learned Public Prosecutor. We have also gone through the case file carefully. 7. Dr. B.D. Jain, who conducted the post-mortem examination over the dead body of Dularam and examined the injuries of PW 2 Smt. Nihar, Kaur, could not be examined during trial as he had become extremely weak and unable to move on account of his old age. As such, his statement recorded in the earlier trial, conducted against Kaka Singh, Kartar Singh and Kashmir Singh, was read in evidence by the enabling provisions contained in Section 33 of the Evidence Act. His statement was marked as Ex. P 17. The prosecution also examined PW 9 Sohan Lal, who was a Compounder in the Government Dispensary, Sadulshahar, in order to pove that the post-mortem examination report Ex. P 13 and the injury report Ex. P 14 of Smt. Nihar Kaur are in the handwriting of Dr. B.D. Jain. The trial Court was perfectly justified in adopting this procedure for reading the earlier statement of Dr. B. D. Jain in evidence. P 13 and the injury report Ex. P 14 of Smt. Nihar Kaur are in the handwriting of Dr. B.D. Jain. The trial Court was perfectly justified in adopting this procedure for reading the earlier statement of Dr. B. D. Jain in evidence. The opinion of Dr. Jain relating to the cause of death of Dularam and the number and nature of the injuries sustained by Smt. Nihar Kaur, were not challenged before us by the learned amicus curiae. We have also gone through his statement Ex. P 17 and find no reason to distrust his opinion. The death of Dularam was, thus, homicidal and not natural. Injuries found on the person of Smt Nihar Kaur (PW 2) were caused by gun-shot and blunt weapon. 8. The prosecution relied upon the direct evidence of three eye witnesses, viz., PW 1 Kripalsingh. PW 2 Smt. Nihar Kaur and PW 3 Samsher Singh, in order to establish the charge against the appellant. As stated earlier, the first two are the husband and the wife and Samshersingh is their son. These three witnesses were also examined in the earlier Sessions trial couducted against Kakasingh and others. 9. It was argued by the learned amicus curiae that that these three eye witnesses are closely related inter se. The occurrence had taken place nearly twenty years ago and as such it was humanly impossible for them to remember and recollect what had happened long back. Still then, if these witnesses narrated the incident, it should be presumed that they have been tutored to state, so. We find no substance in the contention. PW 1 Kripalsingh was nearly 51 years of age when his statement was recorded in 1961 in the earlier trial; PW 2 Smt. Nihar Kaur was then fifty years in age and Samshersingh was then 22 years in age. Each of them was then a grown up person. It is not difficult for a person of grown up age to remember the description of an incident which he had seen even after the lapse of twenty years. 10. PW 2 Smt. Nihar Kaur is an injured witness who received injuries by gun-shot and blunt weapon. The incident took place in their own house where the presence of all these three witnesses was quite natural. 10. PW 2 Smt. Nihar Kaur is an injured witness who received injuries by gun-shot and blunt weapon. The incident took place in their own house where the presence of all these three witnesses was quite natural. The injuries on the person of PW 2 Smt. Nihar Kaur further strengthens her presence on the scene of the incident. When the site was inspected, blood was found in the Kotha and the dead body of Dularam was lying in it. Dularam was, thus, assaulted belaboured and killed in the Kotha of the house of these three witnesses. These three witnesses have no soft corner for the deceased Dularam so as to falsely implicate the appellant and his companions. 11. Apart from that, these three witnesses were found reliable and dependable by this Court while deciding the appeal filed by Kakasingh and Kartarsingh against their conviction and sentences. We have carefully gone through the statements of these three eye witnesses & find no good or cogent reasons to disbelieve them and to take a view contrary that taken by this Court earlier while disposing of the appeal of Kakasingh and Kartarsingh. 12. The evidence of these three witnesses establishes beyond doubt that the deceased Dularam and PW 1 Kripal Singh were sitting, at about 8.00 a.m. on the day of the incident, in the court yard of the house of Kripal Singh. The four miscreants, viz., Kakasingh, Kartarsingh, Kashmirsingh and the appellant Pritamsingh came there. Kakasingh and Kashmirsingh had guns while Kartarsingh and the appellant Pritam Singh had Kripans. One of them fired the shot which hit on the palm of PW 2 Smt Nihal Kaur. But it cannot be ascertained as to who had fired that shot. When the gun-shot was fired Kripal singh and Dularam ran for safety. Kripalsingh took shelter in the kitchen while Dularam took shelter in the Kotha. Kartarsingh and Pritamsingh went in the Kotha, where Dularam had sought shelter. Both of them, viz. Kartar Singh and Pritamsingh had Kripans and they inflicted inumerable injuries to Dularam with their Kripans, as a result of which Dularam sustained injuries on the vital parts of his body and passed away instantaneously on the spot. Kahmirsingh was acquitted by this Court earlier because his identity could not be satisfactorily established as he was a resident of Punjab and not a local man of the village. Kahmirsingh was acquitted by this Court earlier because his identity could not be satisfactorily established as he was a resident of Punjab and not a local man of the village. It can be safely held on the basis of the evidence of these three eye witnesses that Dularam was done to death by Kartarsingh and the appellant Pritamsingh by inflicting injuries to him with their Kripans. The conviction of accused Pritamsingh for offence under Sections 302/34 and 449, Indian Penal Code are perfectly justified. He was rightly convicted and sentenced for aforesaid offences. 13. As regards the charge under Section 307/34, Indian Penal Code it cannot be positively held as to who had fired shot. In the earlier case, all the three accused were acquitted of the offence under Section 307 or 307/34, Indian Penal Code. We are, therefore unable to maintain the conviction of the appellant Pritamsingh under Section 307/34, Indian Penal Code. 14. In the result, the appeal of accused Pritamsingh is partly allowed. His conviction under Sections 302/34 and 449, Indian Penal Code together with the sentences passed thereunder, are maintained. However his conviction and sentence under Section 307/34, Indian Penal Code are set aside and he is acquited thereof. The sentence shall run concurrently.Appeal partly allowed. *******