JUDGMENT 1. This appeal is directed against the judgment of the learned Additional Sessions Judge No. 1, Hanumangarh dated 1.12.1987, whereby the learned Additional Sessions Judge has held accused appellants Gurdeo Singh, Gyan Singh, Khadag Singh and Shravan Singh guilty for the offence under section 302 read with 34 Indian Penal Code and sentenced each one of them to life imprisonment with a fine of Rs. 100/- and in default of payment of fine to further undergo 15 days imprisonment. Hence this appeal. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that deceased Niranjan Singh and his daughter Mst. Jaswinder Kaur P.W. 8 went from their village Dabli Rathan to Hanumangarh for obtaining money from Tehsil Hanumangarh as regards their land. They came to their village Dabli Rathan at 3.30 p.m. by bus. As soon as they alighted from the bus near the shop of Gurbachan Singh, Khadag Singh came there on his cycle. Accused Gurdeo Singh and Gyan Singh were sitting in front of the shop of Gurbachan Singh. He told these two accused persons that this man has to be caught and cut and thereafter Khadag Singh, who was armed with a gandasa caught hold of Niranjan Singh from behind his back. At that time, these two accused persons i.e. Gurdeo Singh and Gyan Singh came from the shop of Gurbachan Singh. Gurdeo Singh was armed with a Kapa (fodder cutting instrument with sharp edges, the blade of which was 1 foot and 41/2 long, while Gyan Singh was armed with a gandasa. Niranjan Singh was having a stick in his hand and when Gurdeo Singh tried to inflict a blow with his Kapa on his head he raised his hands, whereby the fingers of his hand were cut and injuries Nos. 6, 7, 8, 9 and 10 were received by him detailed in the post-mortem examination report Ex. P. 6. Thereafter, it is alleged that Gyan Singh inflicted a blow with his gandasa on the waist of Niranjan Singh and thereafter Gurdeo Singh again inflicted a Kapa blow on his head. Thereafter it is alleged that all the accused persons started beating Niranjan Singh. When Mst. P. 6. Thereafter, it is alleged that Gyan Singh inflicted a blow with his gandasa on the waist of Niranjan Singh and thereafter Gurdeo Singh again inflicted a Kapa blow on his head. Thereafter it is alleged that all the accused persons started beating Niranjan Singh. When Mst. P.W. 8 Jaswinder Kaur tried to intervene, Gurdeo Singh threw her away by catching hold of her "Chutiliya" and as it was a sandy place, she did not receive any injury on her body. At that time, P.W. 1 Shehare Khan came there from the bus stand side and intervened and told the accused persons not to kill him, but it was of no avail. P.W. 3 Mahindra Singh also came there and witnessed the occurrence. It is alleged that in the meantime Shravan Singh came there on his cycle from the market side and told his companions that this man should be killed. It is alleged that deceased Niranjan Singh had killed the brother of the accused persons and has been released on bail only before six months of this occurrence, they availed him. They had also enmity with the complainant party about their field and therefore this occurrence has taken place. Soon after the occurrence Sarpanch P.W. 7. Chandra Bhan came there and Mst. Jaswindra Kaur narrated to him the entire incident and he accompanied her to report the matter to the police, where an oral report was lodged by Jaswindra Kaur, which has been marked as Ex. P. 7. Post-mortem of the dead body of Niranjan Singh was got conducted, which has been marked as Ex. P. 6. A panchnama of the dead body was prepared, which has been marked as Ex. P. 8 Site Plan was prepared, which has been marked as Ex. P. 9 and site inspection memo was also prepared, which has been marked as Ex. P. 9A. The watch of the deceased was recovered from the dead body of Niranjan Singh vide seizure memo Ex. P.10. Seizure memos of blood stained oil and controlled soil were prepared, which have been marked as Ex. P. 11 and Ex. P. 12 respectively. An inquest report was also prepared, which has been marked as Ex. P. 14. Blood stained clothes of the deceased were obtained, which has been marked as Ex. P. 15. P.10. Seizure memos of blood stained oil and controlled soil were prepared, which have been marked as Ex. P. 11 and Ex. P. 12 respectively. An inquest report was also prepared, which has been marked as Ex. P. 14. Blood stained clothes of the deceased were obtained, which has been marked as Ex. P. 15. The accused persons were arrested by the police and on their information and at their instance weapons of offences were recovered. They were sent for the chemical and serological examination. After usual investigation the case against the accused persons was challaned in the court of learned Munsif and Judicial Magistrate, Hanumangarh from where it was committed from trial to the court of the learned Additional Sessions Judge No. 1, Hanumangarh, who framed charges against the accused persons under section 302 read with 34 Indian Penal Code except Shravan Singh, who in the alternative has also been charged with the offence under section 302 read with 109/149 Indian Penal Code. The accused persons did not plead guilty and claimed trial, whereupon the prosecution examined as may as 13 witnesses in support of their case. The statements of the accused persons were recorded under section 313 Criminal Procedure Code., wherein they have denied their participation in the occurrence. They have examined no witness in their defence and after hearing both the parties, the learned Additional Sessions Judge decided the case as aforesaid. 3. We have heard Mr. M.L. Garg, learned counsel appearing for the appellants, Mr. V.R. Mehta, learned Public Prosecutor appearing for the State and Mr. H.S. Sandhu learned counsel appearing for the complainant, and have critically gone through the record of the case. 4. In the case, P.W. 1 Shehare Khan and P.W. 3 Mahendra Singh, who have witnesses the occurrence have turned hostile and they have stated that they have not seen the occurrence at all. P.W. 2 Mohd. Deen was also set up as eye-witnesses by the prosecution, but he too, has turned hostile. Of course he was not named in the F.I.R., but he was examined as an eye-witness of the occurrence, but has turned hostile and has not supported the prosecution case. Thus, we are left with the evidence of P.W. 8 Mst. Jaswindra Kaur, which, to the some extent, is supported by the testimony of P.W. 7 Chandra Bhan, Sarpanch, who reached the occurrence soon after the beating was over. Thus, we are left with the evidence of P.W. 8 Mst. Jaswindra Kaur, which, to the some extent, is supported by the testimony of P.W. 7 Chandra Bhan, Sarpanch, who reached the occurrence soon after the beating was over. P.W. 6 Dr. Mahendra Pal Singh has proved the post mortem examination report Ex. P. 6 of the deceased. He found as many as eleven injuries on the person of the deceased, Niranjan Singh. The injuries are as under:- 1. One spindle shaped incised wound 2" x 3/4" in the centre x bone deep with both ends trailing sketch 1/2" on each side, transverse in direction, 1" above and in the mid region of fore-head. Injury is caused by a sharp weapon. 2. One incised wound 8" x 1/2" mouth cavity deep, with fracture lower jaw, transverse in direction, through and through from left II molar tooth i.e. 1" from left mandibular angle to right cheek 2" anterior to right mandibular angle. Mandible is cut underneath the wound from just below the teeth root. The base i.e. floor of tongue is incised 2" x 1/4" x 1/2" anterior posteriority. 3. One incised wound 3" x 1/4" x brain deep on the right temporal region 1/2" above the pinna of right ear with fracture of underlying bone. Transverse in direction, caused by a sharp weapon. 4. One lacerated wound 5" x 2" x brain deep, from posterior end of injury `3' to the occipital prominence, oblique from antero posterior and down upward direction posteriorly with comminuted fracture of the underlying bones, caused by blunt weapon. Brain matter protruding out of the wound. 5. One incised wound 3" x 1/2" x bone deep, 2" above injury 3 in right parietal region. Parallel to injury 3 in direction caused by sharp weapon. 6. One lacerated wound 3" x 1/2' x bone deep 1" left to the occipital prominence, above down-wards in direction, caused by blunt weapon. 7. One incised wound through and through the interphalingeal joint of left thumb, amputating the left thumb. The dorsal lateral aspect of the basal part of first phalynx of left index finger has one incised wound of 3/4" x 1/10" bone deep size. Transverse in direction, caused by sharp weapon. 8. One incised wound 4" x 1/2" x bone deep on the medical aspect left wrist joint. Oblique from above downwards and back wards inflicted by sharp weapon. Transverse in direction, caused by sharp weapon. 8. One incised wound 4" x 1/2" x bone deep on the medical aspect left wrist joint. Oblique from above downwards and back wards inflicted by sharp weapon. 9. One incised wound 3" x 1/4" x bone deep on the dorsal aspect of right palm, oblique from above down wards and backwards, inflicted by sharp weapon. 10. One incised wound 3" x 1/4" from the base of the dorsal aspect of first phalynx of right middle finger to the base of first phalynx of right little finger cutting, right little and ring fingers completely wound is only bone deep on the middle finger, caused by sharp weapon. 11. One lacerated wound `21/2" x 3/4" x bone deep, 2" below the right elbow joint posteriorly, inflicted by blunt weapon. According to the doctor all these injuries were antemortem in nature and injury No. 4 was sufficient in the ordinary course of nature to cause the death of the deceased and the rest of injuries have also contributed in causing the death of the deceased. According to the doctor the deceased could not have survived for eight to ten minutes after receiving these injuries. Thus, from the evidence of the doctor it is clear that the death was homicidal and not accidental or suicidal. 5. Be that as it may, P.W. 8 has stated that on 21.3.1986, she went to her father to Hanumangarh Tehsil by Bus and they returned from there at out 3.30 p.m. When they alighted from the bus and were proceedings towards their own house, they were going by the side of Gurbachan Singh's shop, where Gurdeo Singh and Gyan Singh were sitting, Khadag Singh came from behind on his cycle and as soon as he came there, he told Gurdeo Singh and Gyan Singh that Niranjan Singh should be caught and cut and after giving this lalkara he caught hold of her father from behind. He was armed with a gandasa. Gurdeo Singh was armed with a Kapa and Gyan Singh was armed with a gandasa. He was armed with a gandasa. Gurdeo Singh was armed with a Kapa and Gyan Singh was armed with a gandasa. After Niranjan Singh was caught from behind by Khadag Singh, Gurdeo Singh and Gyan Singh came there from the shop of Gurbachan Singh and immediately Gurdeo Singh aimed the first blow on the head of Niranjan Singh, but he raised his hands by which his fingers and thumb were cut and thereafter another Kapa blow was inflicted by Gurdeo Singh. Thereafter it is alleged that Gyan Singh inflicted a blow with his gandasa on the waist of Niranjan Singh. It may be stated that there is no injury on the waist of Niranjan Singh's dead body either by sharp edged weapon or by any blunt weapon.Khadag Singh thereafter inflicted a gandasa blow on the head of Niranjan singh, and thereafter it is alleged that Sehare Khan came there and implored the accused persons not to kill a person, but it was of no avail rather he too was threatened with death by the accused persons. It is alleged that at that point of time Shravan Singh came there from the market side on a cycle and told his companions Gurdeo Singh, Gyan Singh and Khadag Singh to cut Niranjan Singh. Thereafter, it is alleged that Gurdeo Singh inflicted a Kapa blow on the chin of her father. It is alleged by her that her father has died on the spot and Mahendra Singh also came there and witnessed the incident and Chandra Bhan also came there after some time. P.W. 1 Sahare Khan and P.W. 3 Mahendra Singh, who were the eye-witnesses, have turned hostile. P.W. 2 Mohd. Deen, who was also set up as an eye-witness of the occurrence has turned hostile. P.W. 7 Chandra Bhan, Sarpanch has categorically stated that some people of the village came running and told him about the incident and as soon as he heard that Shri Niranjan Singh has been cut by his four nephews Gyan Singh, Gurdeo Singh has been cut by his four nephews Gyan Singh, Gurdeo Singh, Khadag Singh and Shravan Singh, he came to the Bus Stand and there he found Niranjan Singh in an injured condition. He was bleeding from his wounds and Jaswindra Kaur told him that these four accused persons have killed his father with Kapa, gandasa etc. He was bleeding from his wounds and Jaswindra Kaur told him that these four accused persons have killed his father with Kapa, gandasa etc. and she has further informed him that these four accused have run away from the place of incident on their two cycles. Thereupon, he accompanied her to the police station, where F.I.R. Ex. P. 7 was lodged. He has also proved the panchayatnama of the dead body of Niranjan Singh Ex. P. 8 and has also disclosed that Niranjan Singh had killed the brother of the accused persons and was released from the custody only 5-6 months prior to the date of the occurrence. He also disclosed that they have a land dispute amongst themselves and, therefore, they have killed Niranjan Singh. 6. Now this has to be seen as to whether all the four accused persons are guilty of killing Niranjan Singh. So far as Shravan Singh is concerned, it has been stated in the F.I.R. that he came on his cycle from the market after the beating was over and when he saw that Niranjan Singh has already been killed, he told his companions that they should go away from the scene as the work is now over and so they shouted ran away. Whereas P.W. 8 Mst. Jaswindra Kaur has stated at the trial that he came to the scene of occurrence prior to the arrival of Sahare Khan and it is alleged that he also inflicted injuries to Niranjan Singh. This is a clear contradiction in her testimony when it is compared to her earlier statement recorded in the F.I.R. It may be stated here that arrival of these two persons i.e. Niranjan Singh and his daughter Mst, Jaswindra Kaur was totally unknown to other persons. It was not a pre-planned visit. It was per chance that Gurdeo Singh and Gyan Singh were sitting at the shop of Gurbachan Singh. At that time, Khadag Singh came on his cycle from the Bus Stand side. Thus, there could not have been any prior meeting of mind or any conspiracy to kill Niranjan Singh. Whatever common intention has developed, it has developed at the spot, when Khadag Singh told his brothers Gurdeo Singh and Gyan Singh that this man has to be caught and out. Thus, there could not have been any prior meeting of mind or any conspiracy to kill Niranjan Singh. Whatever common intention has developed, it has developed at the spot, when Khadag Singh told his brothers Gurdeo Singh and Gyan Singh that this man has to be caught and out. On this `Lalkara', these two persons joined him in assaulting the deceased and, therefore, Shravan Singh could not have shared any common intention with these accused persons to kill Niranjan Singh. His arrival at the scene of occurrence was totally accidental & unplanned. Thus, his participation in the crime has not been established. Actually it appears to be a case of excessive implication by hook and crook. It may be that as per chance he came from the market side and told his brothers that they should run away from the scene of occurrence, but that does not mean that he had common intention to kill Niranjan Singh. He has not participated in the killing of Niranjan Singh and, therefore, so far as Shravan Singh is concerned, he deserves benefit of doubt. 7. Now we take up the case of Gyan Singh. It is alleged against Gyan Singh that he did come near the deceased on bearing `Lalkara' of Khadag Singh. It is alleged that he was armed with a gandasa and he inflicted injuries with his gandasa on the waist of the deceased. We have already mentioned above that there is no injury on the waist of the deceased either by blunt or sharp-edged weapon and, therefore, so far as he is concerned, it appears to be a case of over implication. If he was armed with a gandasa and shared the common intention with the other two accused persons to kill Niranjan Singh then he would have certainly used his gandasa to kill Niranjan Singh by inflicting injuries on the vital parts of his body, but testimony of Mst. Jaswindra Kaur about his participation does not inspire confidence. Between a fact which may be true and which must be true a long distance has to be travelled and that too by the prosecution by adducing dear, cogent and reliable evidence. In this case we are left with the sole testimony of Mst. Jaswindra Kaur about his participation does not inspire confidence. Between a fact which may be true and which must be true a long distance has to be travelled and that too by the prosecution by adducing dear, cogent and reliable evidence. In this case we are left with the sole testimony of Mst. Jaswindra Kaur, which has not been supported by medical and other circumstantial evidence as regards the participation of Gyan Singh and, therefore, we are inclined to grant benefit of doubt to accused Gyan Singh. He has no pre-planned mind to kill Niranjan Singh. His arrival at the scene of occurrence was totally accidental. 8. So far as other two accused Khadag Singh and Gurdeo Singh are concerned, the testimony of Mst. Jaswindra Kaur is totally consistent. She has stated that these two accused persons had participated in the occurrence and her testimony is fully corroborated with the medical evidence, wherein injuries have been found on the head, fingers, thumb and chin of the deceased and, therefore, her testimony is totally supported by the medical testimony and it further stands supported by the evidence given by Chandra Bhan to whom the incident was narrated by Mst. Jaswindra Kaur soon after the incident and, therefore, we are inclined to accept the testimony of Mst. Jaswindra Kaur as true as regards the .participation of these, two accused persons. Under these circumstances, so far as conviction of accused appellants Gurdeo Singh and Khadag Singh recorded by the learned Additional Sessions Judge under section 302 read with 34 Indian Penal Code is concerned, it deserves to be sustained and the sentence imposed on them also appears to be just and proper in the facts and circumstances of the case. So far as accused appellant Shravan Singh and Gyan Singh are concerned their appeal deserves to be accepted by giving them the benefit of doubt. 9. In the result the appeal partly succeeds. The conviction and sentence of the accused appellant Gyan Singh and Shravan Singh recorded under section 302 read with 34 Indian Penal Code are set aside and they are acquitted of the aforesaid offence. Since accused appellant Shravan Singh is on bail, he need not surrender to his bail bonds. As the accused appellant Gyan Singh is in jail, he be released forthwith if he is not required in any other case. Since accused appellant Shravan Singh is on bail, he need not surrender to his bail bonds. As the accused appellant Gyan Singh is in jail, he be released forthwith if he is not required in any other case. So far as accused appellants Gurdeo Singh and Khadag Singh are concerned, we are not inclined to allow their appeal in view of the observations made hereinabove and hence their appeal stands rejected. The result of the appeal be conveyed to the jail authorities for execution. However, the record of the lower court be sent immediately for needful.Appeal partly accepted. *******