JUDGMENT 1. - The learned Additional Sessions Judge No. 1, Hanumangarh camp Sangariya by his order dated 8.12.1989 convicted the accused-appellant Mukhtiar Singh for the offence under S. 302 IPC and accused-appellants Sardulsingh and Sukhdeo Singh for the offence under S. 302/34 IPC and sentenced them to imprisonment for life together with a fine of Rs. 100/- and in default to payment of fine, to undergo one month's simple imprisonment. He further convicted the accused-appellants Sardulsingh and Sukhdeo Singh for the offences under Sections 326 and 324 IPC respectively and sentenced accused appellant Sardulsingh to rigorous imprisonment for 6 months together with a fine of Rs. 100/- and in default of payment of fine, to undergo one month's simple imprisonment for the offence under S. 326 accused appellant Sukhdeo Singh to undergo rigorous imprisonment for three months together with a fine of Rs. 100/- and in default of payment of fine, to undergo one month's simple imprisonment for the offence under S. 324 IPC. 2. The prosecution case, briefly stated, is that on 1.9.1987 at about 8.00 PM, deceased Mahendrasingh, P.W. 7 Shyamsingh and P.W. 6 Mst. Balwant Kaur were sitting in their house situated at village Haripura, Tehsil Sangariya, District Sriganganagar. The accused-persons also live near the house of Shyamsingh and Mahendrasingh. On that night, all the three accused armed with a spear and Gandasa came in front of the house of Shyamsingh and started abusing the latter and his family members. Shyamsingh came out followed by his son Mahendrasingh. As soon as Mahendra Singh came out, Sardulsingh and Sukhdeosingh told their father Mukhtiarsingh not to spare Mahendrasingh. Thereupon, Mukhtiarsingh immediately plunged his spear into the abdomen of Mahendrasingh and Sukhdeo Singh deal Gandasi blow on the waist of Mahendrasingh. Mahendrasingh fell down as a result of the above injuries and died instantaneously. When Shyamsingh proceeded to intervene, Sukhdeosingh dealt a Gandasi blow on his head and Sardul Singh inflicted an injury on his Patella with the spear. Shyamsingh also fell down. The spear plunged by accused Mukhtiar singh into the abdoment of Mahendrasingh could not be severed and its Phal (iron portion) got entangled into the abdomen and got served from the wooden stick. The witnesses Mahendrasingh and Jhhagarasingh came to the place of the occurrence. PW. 6 Mst. Balwant Kaur also came out followed by Mahendrasingh. She also saw part of the occurrence. 3. The witnesses Mahendrasingh and Jhhagarasingh came to the place of the occurrence. PW. 6 Mst. Balwant Kaur also came out followed by Mahendrasingh. She also saw part of the occurrence. 3. Since Shyamsingh was seriously injured, he first went to the Govt. Hospital, Sangariya for treatment and remained there for the night. Next day morning, he set out to the police station and after reaching there, lodged the FIR Ex.R 19 at Police Station, Sangariya at 8.10 AM. 4. The Police on receipt of the above information registered a case under Sections 302 and 307 IPC and started investigation. The FIR was despatched to the concerned Magistrate on the same day and it reached him at 5.00 PM. The site was inspected and Site Plan Ex.R 11 was prepared. The accused were arrested vide Memos Ex.P 9 to Ex.P 11 and weapons of offence were recovered from the possession of the accused in pursuance of the information furnished by them under S. 27 of the Evidence Act. The postmortem of the deceased was conducted by Dr. Nath Mai Duggar (PW. 8) on 3.9.1987. He prepared the postmortem report Ex.P 20. Accordingly to the Medical Officer, the deceased died on account of the injury to chest and heart. The Medical Officer also examined the injuries of Shyamsingh and as per the injury report Ex.P 20, he found to have sustained six injuries. Out of the above injuries, injury NO. 1 was grievous. There was a fracture of Patella. All other injuries were simple in nature. Injuries Nos. 1 , 3 and 4 were inflicted by sharp-edged weapon while other injuries were inflicted with the blunt weapon. 5. After collecting the above evidence, a challan was filed in the court of the learned Munsif & Judicial Magistrate, Sangariya on 13.11.1987. The learned Magistrate committed the accused to the court of the learned Sessions by his Order dated 31.3.1988. The learned Sessions Judge framed the charges under Sections 302 and 307 IPC against accused Mukhtiarsingh and under Sections 320/34 and 307 IPC against accused Sardulsingh and Sukhdeosingh. The accused pleaded not guilty to the charges and claimed to be tried. The prosecution examined all witnesses to prove its case. In their statements recorded under S. 313 Cr.PC., the accused denied the prosecution case in toto and alleged that they have been falsely implicated. The accused did not lead any evidence defence. 6. The accused pleaded not guilty to the charges and claimed to be tried. The prosecution examined all witnesses to prove its case. In their statements recorded under S. 313 Cr.PC., the accused denied the prosecution case in toto and alleged that they have been falsely implicated. The accused did not lead any evidence defence. 6. The learned Sessions Judge examined the prosecution evidence and found the statements of P.W. 6 Mst. Balwant Kaur and P.W. 7 Shaymsingh trustworthy and held that their testimony was consistent, straightforward, truthful and reliable. According to the learned Sessions Judge, the motive was previous bad blood beteween Mahendrasingh and Mukhtiarsingh. Mukhtiarsingh often used to come to the house of Mahendrasingh under intoxication and indulged in abusive language. This was resented by Shyamsingh and Mahendrasingh. Shyamsingh also reprimanded Mukhtiarsingh. Mukhtiarsingh, therefore became angry and wanted to take revenge. The learned Sessions Judge also found that it has been proved from the Medical evidence that Mahendrasingh died as a result of injuries sustained in the sternum region and also damage to the heart. His death was, therefore, homicidal. He, therefore, convicted and sentenced the accused-appellants as stated above. 7. We have heard Mr. H.S.S. Kharalia, the learned counsel appearing for the accused-appellants and Mr. Vishal Raj Mehta, the learned Public Prosecutor for the State and have carefully gone through the record of the case. 8. The learned counsel appearing for the accused-appellants has contended that the learned Sessions Judge did not appreciate the evidence properly. RW. 6 Mst. Balwant Kaur and RW. 7 Shyamsingh were highly interested witnesses inasmuch as the former was the wife of the deceased and the latter was the father of the deceased. Hence, their testimony ought to have been appreciated keeping in view their interest in the prosecution case. There was also inordinate delay in lodging the FIR. The occurrence took place at about 8.00 PM on 1.9.1987 but the FIR was lodged after 12 hours. It was contended that when Shyamsingh could go for treatment to Govt. Hospital Sangariya, he could have sent a message to the police station and the Police could come and recorded his statement. He has submitted that the delay has been utilised in fabricating a false case against the accused-persons. 9. It was next contended by Mr. Kharaliya that RW. 6 Mst. Hospital Sangariya, he could have sent a message to the police station and the Police could come and recorded his statement. He has submitted that the delay has been utilised in fabricating a false case against the accused-persons. 9. It was next contended by Mr. Kharaliya that RW. 6 Mst. Balwant Kaur came out of the house in the last when the beating or incident was over. Hence, it was not at all likely that she could have witnessed the incident or part thereof. Her statement is, therefore, totally false and hypothetical. It is also surprising that at such a time, no independent eye witnesses gathered there. Two or three witnesses who are alleged to have assembled there have not supported the prosecution case. They have turned hostile. It is, therefore, very risky and hazardous to sustain the conviction of the accused-appellants solely on the basis of the testimony of PW. 7 Shyamsingh. 10. It was also contended by Mr. Kharaliya that there was absolutely no motive for committing such a heinous and serious crime. Merely verbal altercations cannot lead to such a serious enmity prompting one to commit the murder of the other. There is also difference between the ocular evidence and the medical evidence as regards the injuries sustained by the deceased. According to the medical evidence, only one wound was found on the person of the deceased as mentioned in the post-mortem report Ex.P 20. According to the evidence produced at the trial, accused Sardulsingh gave a spear blow in the chest of the deceased Mahendrasingh and accused Mukhtiarsingh pulled off the spear but it broke off but PW. 7 Shyam Singh does not state this thing. He, therefore, submitted that the prosecution has miserably failed to prove the offence against the accused beyond all reasonable doubt. 11. The learned Public Prosecutor has supported the prosecution case and submitted that at the time of incident, only Shyamsingh was present and he was later on joined by PW. 6 Mst. Balwant Kaur. Mst. Balwant Kaur, of course, did not see the whole of the incident but she cannot be disbelieved as regards her statement describing part of the incident. The statement of Shyamsingh is fully corroborated by the medical evidence. There is absolutely no ground to discredit him though he happened to be the father of the deceased. 6 Mst. Balwant Kaur. Mst. Balwant Kaur, of course, did not see the whole of the incident but she cannot be disbelieved as regards her statement describing part of the incident. The statement of Shyamsingh is fully corroborated by the medical evidence. There is absolutely no ground to discredit him though he happened to be the father of the deceased. Merely on account of blood relations, the testimony of a witness cannot be discredited. 12. It was also contended by the learned Public Prosecutor that accused Mukhtiarsingh often used to indulge in abusive language which Shyamsingh objected. This created irritation between Mukhtiarsingh and Mahendrasingh. 13. We have considered the rival submissions made at the bar and have carefully gone through the prosecution evidence as also the defence evidence. 14. Before we proceed to examine the direct evidence, we may state that it has not been disputed before us that Mahendrasingh died as a result of sustaining fatal injuries. The statement of the Medical Officer corroborates this fact. It is, therefore, proved that the death of Mahendrasingh was homicidal. 15. Now the next question that arises for determination is whether accused Mukhtiarsingh committed the murder of Mahendrasingh and whether other accused had common intention for committing the above offence. 16. It may be stated here that in this case, out of 11 prosecution witnesses, PW. 1 Mahendra Singh has turned hostile and has not supported the prosecution case at all. The testimony of PW. 2 Gurcharansingh, PW. 3 Chunnilal, PW. 10 Karnailsingh and PW. 11 Surendra Kumar is of formal nature. The important statements are of PW. 6 Mst. Balwant Kaur and PW. 7 Shyamsingh. We may briefly refer their statements which may facilitate the appreciation of the whole prosecution case. 17. PW. 7 Shyam singh has stated that the accused reside at a distance of about 500 feet from their house. All the three accused often indulged in indecent behaviour and resorted to abusive language after taking liquor. He used to counsel them. On the day of the occurrence, all the three accused appeared in front of their house in an intoxicated condition armed with weapons. The time was 8.00 PM. the, deceased Mahendrasingh and his daughter-in-law Mst. Balwant Kaur were inside the house. When he heard the voice of the accused, he came out followed closely by his son Mahendra Singh. On the day of the occurrence, all the three accused appeared in front of their house in an intoxicated condition armed with weapons. The time was 8.00 PM. the, deceased Mahendrasingh and his daughter-in-law Mst. Balwant Kaur were inside the house. When he heard the voice of the accused, he came out followed closely by his son Mahendra Singh. As soon as they came out, accused Sardulsingh and Sukhdeo Singh exhorted accused Mukhtiarsingh not to spare Mahendrasingh. Mukhtiarsingh and Sardulsingh were armed with spear and Gandasi respectively. First of all, accused Mukhtiarsingh poised the spear and plunged with great force into the sternum region of Mahendrasingh and accused Sukhdeosingh dealt a Gandasi blow on the chest region of Mahendrasingh. The spear was plunged so fiercely that when an attempt was made to take it out, the iron portion broke off and remained inside the chest. Mahendrasingh was fatally injured and died instantaneously there. Shyamsingh tried to intervene and made an attempt to save his son but he was prevented and Sukhdeosingh dealt a Gandasi blow on his head. Sardulsingh administered a spear blow on his knee. Mahendrasingh and Jhhbagara singh, two brothers also came thee. Since he was old and sustained grievous injuries, he first went to Sangariya Govt. Hospital for treatment and remained there for the whole night. Next day he went to the police station and lodged the FIR Ex.R 19. In cross- examination, he has stated that the night was not dark but it was moon lit. He admitted that his statement Ex.D. 2 before the Police, he did not state that Sukhdeo singh dealt a sphere blow to Mahendrasingh on his sternum region. He admitted that his two sons Jantha singh and Nakhsthra singh were convicted in a murder case and are undergoing life imprisonment. His daughter-in-law Ms. Balwant Kaur came out of the house after five minutes. He did not become unconscious as a result of sustaining blows. 18. RW. 6 Mst. Balwant Kaur has stated that when the accused started shouting and abusing before their house, Shyamsingh went out to pacify them followed by her husband Mahendrasingh. She stated that Mukhtiarsingh plunged the spear blow in the abdomen of her husband. No other person dealt any blow to Mahendrasingh. She also stated that Sukhdeo Singh and Sardulsingh dealt a Gandasi blow on the head and spear blow on the knee respectively to Shyamsingh. She stated that Mukhtiarsingh plunged the spear blow in the abdomen of her husband. No other person dealt any blow to Mahendrasingh. She also stated that Sukhdeo Singh and Sardulsingh dealt a Gandasi blow on the head and spear blow on the knee respectively to Shyamsingh. In her cross-examination, she has stated that visibility was possible on account of moon light, though there was no electricity. None came from the neighbourhood. She also admitted that she started to come out only when she heard the cries of her father-in-law and when she came out, she saw the accused assaulting her father-in-law Shyamsingh. 19. RW. 9 Jeewanram is the Investigating Officer. He has stated that he arrested accused Sukhdeosingh and Sardulsingh vide arrest memos Ex.P 8 and 9 respectively. Accused Mukhtiarsingh, while in custody, gave an information under s. 27 of the Evidence Act regarding the recovery of a wooden stick which is a part of the sphere used by him in committing the offence and the same was recovered in pursuance of his information from his possession vide recovery memo Ex.P 10. Similarly, accused Sukhdeosingh gave a similar statement under s. 27 of the Evidence Act for the recovery of one Gandasi, which was recovered from his possession vide memo Ex.P 12. They were seized and sealed and were sent for chemical examination. In his report, the Chemical Examiner found that gandasi and Sella were found stained with human blood. However, the group of blood could not be detected as the same had disintegrated.We have very carefully examined the testimony of Rw. 7 Shyamsingh and RW. 6 Mst. Balwant Kaur. In our opinion, RW. 6 Mst. Balwant Kaur did not see the occurrence from the very beginning but she joined Shyamsingh when the latter raised an alarm and she reached there. She only saw Shyamsingh being assaulted by the other two accused. In other words, Mst. Balwant Kaur did not see Mahendrasingh being assaulted by Mukhtiarsingh. 20. Thus, the only testimony to prove the offence of murder is that of Shyamsingh. After examining the statement of PW. 7 Shyamsingh critically, we find that he is absolutely reliable. His statement is straight forward and devoid of any contradictions or inconsistencies. His presence at the place of the occurrence was so natural. 20. Thus, the only testimony to prove the offence of murder is that of Shyamsingh. After examining the statement of PW. 7 Shyamsingh critically, we find that he is absolutely reliable. His statement is straight forward and devoid of any contradictions or inconsistencies. His presence at the place of the occurrence was so natural. Though he is an interested witness being the father of the deceased, his statement cannot be brushed aside on that ground because it is otherwise fully unassailable and natural. He has also stated that he identified the accused. It was a moon lit night and it was not difficult to identify the assailants from such a close distance. 21. The motive may be trifling but according to Shyamsingh, accused often used to create nuisance. They used to come under the influence of liquor and indulged in indescent behaviour and abused ad randum. The statement of P.W. 6 Mst. Balwant Kaur has definitely corroborated the statement of PW. 7 Shyamsingh because, she reached the place of occurrence immediately. She saw the accused armed with the above weapons. She also saw her husband lying on the ground in an injured condition. She also saw accused Sardulsingh and Sukhdeosingh assaulting her father-in-law Shyamsingh. the other accused viz., Mukhtiarsingh was standing and, therefore, it is very clear that she saw part of the incident and her testimony is also reliable. Both the witnesses have stood cross-examination very well and in their statements, there are no inherent improbabilities on the basis of which the prosecution story can be assailed. One or two minor contradictions are there but they are so natural, even in the statements of honest witnesses. 22. Now the question is what offence is made out against each of the accused. It is in evidence that all the three were armed with deadly weapons but only on the basis of the nature of weapons, no inference can be drawn that each of the accused shared common intention to commit the murder of Mahendrasingh. All of a sudden accused Mukhtiarsingh took the sphere and plunged the same into the sternum region of Mahendrasingh, as a result of which he fell down and died instantaneously. All of a sudden accused Mukhtiarsingh took the sphere and plunged the same into the sternum region of Mahendrasingh, as a result of which he fell down and died instantaneously. A great force was used which is exhibited by the fact that the iron portion of the sphere got entangled inside the body of Mahendrasingh and when it was pulled out, the iron portion got severed from the wooden portion. The injury caused was on such a vital part of the dead body that it can lead to death. Hence, there is absolutely no difficulty in presuming that accused Mukhtiarsingh had the intention to commit the murder of Mahendrasingh. The injury caused by him was sufficient in the ordinary course of nature to cause the death of Mahendrasingh. 23. However, it is difficult to connect the other accused with the common intention to commit the murder of Mahendrasingh. It is correct that all the three were armed with deadly weapons but from the circumstances of the case, it does not appear that the other accused shared a common intention to kill Mahendrasingh. Mahendrasingh was only attacked by accused Mukhtiarsingh.The other two accused did not at all participate in beating to Mahendrasingh. Hence, the offence under s. 302/34 IPC is not proved against the accused Sukhdeosingh and Sardulsingh. 24. Regarding the offence under sections 326 and 324 IPC against accused Sardul Singh and Suhdeosingh respectively, there is ample evidence that both the accused inflicted injuries to Shyamsingh. 25. In view of what has been discussed hereinabove, we are firmly of the view that the offence under s. 302 IPC has been proved against accused Mukhtiarsingh but the offence under sections 302/34 IPC has not been proved against accused Sardulsingh and Sukhdeosingh. However, the offences under sections 326 and 324 IPC have been proved against accused Sardulsingh and Sukhdeosingh respectively. 26. In the result, this appeal is allowed in part. The conviction and sentences recorded against accused appellants Mukhtiarsingh, Sardulsingh and Sukhdeosingh for the offences udner sections 302, 326 and 324 IPC respectively by the learned Addl. Sessions Judge No. 1, Hanumangarh are maintained. However, the conviction and sentences recorded against accused Sardulsingh and Sukhdeosingh for the offence under s. 302/34 IPC are quashed and they are acquitted of the offence under s. 302/34 IPC. Sessions Judge No. 1, Hanumangarh are maintained. However, the conviction and sentences recorded against accused Sardulsingh and Sukhdeosingh for the offence under s. 302/34 IPC are quashed and they are acquitted of the offence under s. 302/34 IPC. If the accused-appellants Sardulsingh and Sukhdeo Singh have served out the sentences awarded to them for the offences under sections 326 anc024 IPC respectively, they be set free immediately, if not required with any other case. *******