JUDGMENT A.N.Jindal, J.:- This judgment shall dispose of three appeals No.179 DB of 2005 filed by Rajinder Singh alias Rana and Lakhwinder Singh, No. 220-DB of 2005 filed by Hans Raj alias Hansa and No. 370-DB of 2005 filed by Mulakh Raj alias Mulkha. These appeals having been arisen out of the same judgment are decided together. 2. The learned Additional Sessions Judge (Adhoc) Fast Track, Sangrur vide judgment dated 25.1.2005 convicted accused Mulkh Raj alias Mulkha, Hans Raj alias Hansa, Rajinder Singh alias Rana and Lakhwinder Singh (hereinafter referred to as the accused ) under Sections 460,323,324, 148 read with Section 149 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced as under :- --------------------------------------------------------------------------------------------------------------------------- Mulakh Raj, Hans Raj, Lakhwinder Singh and Rajinder Singh --------------------------------------------------------------------------------------------------------------------------- U/s 460 IPC : To undergo imprisonment for life and to pay fine of Rs.5,000/- each. In default of payment of fine to further undergo rigorous imprisonment for one year each. --------------------------------------------------------------------------------------------------------------------------- U/s 148 IPC : To undergo rigorous imprisonment for two years each. --------------------------------------------------------------------------------------------------------------------------- U/s 324/149 IPC : To undergo rigorous imprisonment for one year each. ---------------------------------------------------------------------------------------------------------------------------U/s 323/149 IPC : To undergo rigorous imprisonment for six months each. --------------------------------------------------------------------------------------------------------------------------- 3. The necessary facts, as unfolded by the prosecution, which culminated into trial against the accused are that Sukhdev Singh complainant (hereinafter referred to as the complainant) is a resident of village Bhasaur, who owned a truck bearing registration No. PAT – 7271. On 2.5.1996, he had loaded wheat bags from Grain Market, Bhasaur for unloading the same at Punjab State Warehousing Corporation at Dhuri but due to odd hours, he brought the same at his house. At about 9 p.m., after taking his meals he along with his family members including his father Kapoor Singh, his wife Gurdev Kaur, daughter Kamaljit Kaur and two other children went to sleep. At about 2.30 a.m., in the night, on 2- 3.5.1996, 8/10 persons trespassed into his house and over-powered the complainant, dragged his father Kapoor Singh and brought him in his room. 8-10 persons over-powered his wife Gurdev Kaur and other children. The said persons compelled him to part with the cash and golden ornaments kept by him in his house. On resistance shown by Kapoor Singh, he as well as his family members were given beatings by the accused. 8-10 persons over-powered his wife Gurdev Kaur and other children. The said persons compelled him to part with the cash and golden ornaments kept by him in his house. On resistance shown by Kapoor Singh, he as well as his family members were given beatings by the accused. Right arm of Kapoor Singh was fractured and he also received injuries on the other parts of his body. When he tried to rescue his father, the accused gave datar blow on his left wrist. However, he warded off the second blow. Resultantly, he suffered injuries on the fingers of his left hand. The accused also inflicted injuries on the back side of the head and neck of the complainant thereby he fell down. Gurdev Kaur and Kamaljit Kaur started weeping. One of the accused persons threatened to kill them in case they raised alarm. They also inflicted soti blows on the nose of his wife and on the leg of his daughter Kamaljit Kaur. The accused also dragged the complainant, his father, wife and children and confined them in a room. They also removed the golden ear rings of his wife and golden ring of the complainant. Out of all the accused, eight persons remained standing in the room preventing the complainant and his family members not to go out. The remaining accused ran sacked his house. After about half an hour, the accused started his truck and took the same towards Malerkotla. After sometime they again brought the truck and they also tried to kidnap them in the truck but on raising hue and cry by the complainant, the villagers gathered. Consequently, the accused ran away. On inquiry, it was found that the accused had taken away two lady wrist watches, rupees eight thousand in cash, thirty un-stitched suits and some utensils, which were to be given in the marriage of his daughter. Subsequently, all the injured were admitted in the hospital. On the aforesaid statement of the complainant, SI Swaran Singh, registered a case in the Police Station. On 3.5.1996 SI Swaran Singh collected medico legal reports of the injured persons. On 4.5.1996 on receipt of the information from the hospital that Kapoor Singh had died, the offence was converted into Section 302 IPC. The investigating officer conducted the inquest. The Doctor conducting the post mortem examination opined that the death was the result of the cardio respiratory failure. On 4.5.1996 on receipt of the information from the hospital that Kapoor Singh had died, the offence was converted into Section 302 IPC. The investigating officer conducted the inquest. The Doctor conducting the post mortem examination opined that the death was the result of the cardio respiratory failure. 4. Till 9.6.1996, the accused could not be identified or arrested. However, on 10.6.1996 the accused mentioned at Sr.No.1 to 18 on the memo of parties were nominated by Gurcharan Singh son of Kartar Singh resident of Jodhpur Cheema. Consequently, on 2.7.1996, Inspector Gurmail Singh of CIA Staff Bahadur Singh Wala arrested Joginder Singh alias Kala, Amrit Pal alias Tony, Mulakh Raj alias Mulkha, Sat Pal alias Satta, Ram Sarup and Hans Raj alias Hansa in case FIR No.90 dated 2.7.1996 under Sections 307, 148, 149 IPC, PS Bhawanigarh and thereafter they were arrested in the present case. On the same day, SI Ranjit Singh of CIA Staff Bahadur Singh Wala got recovered 106 bags of wheat pertaining to this case from the possession of accused Prem Rattan son of Kaur Chand and Harjinder Singh son of Parkash Singh. On 7.7.1996 SI Prem Singh, SHO of PS Focal Point, Ludhiana arrested accused Rajinder Singh, Lakhwinder Singh, Surinder Singh son of Jaswinder Singh and Surinder Singh son of Majhail Singh and they were also arrested in the present case on 12.7.1996. On 12.7.1996 Amritpal got recovered the utensils and accused Rajinder Singh got recovered the registration certificate of the truck and stolen watches from accused Surinder Singh alias Babli. Accused Rakesh Kumar alias Tunda, Arjun Kumar and Jagdish Kumar sons of Durga Ram Chand, Dharamveer alias Harchandi, Ramesh Kumar @ Gula, Vijay Pal son of Mehnga Ram, Jeet Singh alias Bachhi son of Leelu Ram could not be arrested, therefore, they were got declared proclaimed offenders. On completion of the investigation, challan against the accused was presented in the Court. 5. Subsequently, Devinder Singh accused was arrested and supplementary challan was presented against him. 6. On completion of the investigation, challan against the accused was presented in the Court. 5. Subsequently, Devinder Singh accused was arrested and supplementary challan was presented against him. 6. On finding a prima facie, accused Amrit Pal, Mulakh Raj, Sat Pal alias Satta son of Lillu Ram, Ram Sarup son of Karta Ram, Joginder Singh, Hans Raj, Rajinder Singh, Lakhwinder Singh, Surinder Singh son of Jaswinder Singh, Surinder Singh son of Maingal Singh, Sat Pal son of Dunda Ram, Prem Rattan and Harjinder Singh, were charge sheeted under Sections 460, 324, 323, 412, 148 and 149 IPC to which they pleaded not guilty and claimed trial. To substantiate the charges against the accused persons, the trial Court examined Ramesh Sharma, Medical Officer, Civil Hospital, Dhuri (PW-1). He deposed that on 4.5.1996, he conducted post mortem examination on the dead body of Kapoor Singh son of Harbhajan Singh, resident of village Bhasaur and found the following injuries on his person :- “1. There was a contusion 6 cms x 5 cms on the dorsem of right fore-arm in its middle part having both radius and ulna fractured. 2. There was lacerated wound 5 cms x 2 cms x 1 cm on the dorsem of left fore-arm in its middle part. 3. There was 2 cms x ½ cm x ½ cm on the dorsem of the left fore-arm, 2" proximal to the wrist joint with stitched wound and dressing present. 4. On the left fore-arm there was an incised wound 3" proximal to the wrist joint stitched one having clotted blood and dressing of 2 cms x ½ cm x 1/4th cm in size 5. There was contusion mark on the right lateral mallelous 8 cms x 6 cm of size and bluish in colour. 6. There was a reddish contusion mark on the middle part of the right thigh on its lateral side 8 cms x 2 cms in size having medicine applied. 7. On the right gluteal region there was a contusion mark of 10 cms x 2.5 cm size having medicine applied.” 7. This witness proved the carbon copy of the MLR as Ex.PA, belongings of the deceased, police papers including the inquest report as Ex.PB. 7. On the right gluteal region there was a contusion mark of 10 cms x 2.5 cm size having medicine applied.” 7. This witness proved the carbon copy of the MLR as Ex.PA, belongings of the deceased, police papers including the inquest report as Ex.PB. He further deposed that on the police request Ex.PC, he was directed to conduct the post mortem examination by the S.M.O. vide his endorsement Ex.PC/1 and he proved his own endorsement as Ex.PC/2. He further deposed that on the police request Ex.PD, he gave his opinion Edx.PD/1 that the cause of death was due to cardiac respiratory failure which may be due to the injuries which the deceased had on his person. 8. Dr.R.P.Jindal, M.O. Civil Hospital, Dhuri, while appearing as PW-2 deposed that on 3.5.1996 he medically examined Kapoor Singh son of Harbhajan Singh, resident of village Bhasaur and he found the following injuries on his person :- 1. A reddish contusion 6 cms x 5 cms on the dorsem of right fore-arm in its middle. There was fracture of both bones of the fore-arm. 2. A lacerated wound 5 cms x 2 cms x muscle deep on the dorsem of left fore-arm in its middle part. 3. An incised wound 2 cms x 0.5 cm x muscle deep on the dorsem of left fore-arm 2" proximal to wrist joint. Fresh bleeding was present. 4. An incised wound 3 cms x 0.5 cm on the dorsem of left fore-arm 1" proximal to injury no.3. Fresh bleeding was present. 5. A reddish contusion 8 cms x 6 cms on the right lateral malleolus. 6. A reddish contusion 10 cms x 2.5 cms on the right gluteal region. 7. A reddish contusion 8 cms x 2 cms on the little aspect of right thigh in its middle part. 9. PW-2 Dr.R.P.Jindal further deposed that he sent information Ex.PF to the police regarding the arrival of injured Kapoor Singh alongwith Sukhdev Singh and Gurdev Kaur. He further deposed that on 3.5.1996 on the police, request Ex.PH, he declared Kapoor Singh as fit to make the statement vide his endorsement Ex.PB/1 and on 4.5.1996 he sent information Ex.PG to the police that injured Kapoor Singh had died. 10. PW-2 Dr.R.P.Jindal further deposed that on the same day he medically examined Sukhdev Singh son of Kapoor Singh and he found the following injuries on his person :- 1. 10. PW-2 Dr.R.P.Jindal further deposed that on the same day he medically examined Sukhdev Singh son of Kapoor Singh and he found the following injuries on his person :- 1. Incised wound 5 cms x 1 cm x muscle deep on the dorsum of left fore-arm 4" proximal to the wrist joint. Fresh bleeding was present. 2. A lacerated wound 2 cms x 0.5 cm x muscle deep on the palmer aspect of left index finger. Fresh bleeding was present. 3. A reddish contusion 10 cms x 8 cms on the back of neck. 4. A lacerated wound 2 cms x 0.5 cm bone deep on the left mastoid region. Fresh bleeding was present. 11. This witness proved the carbon copy of the MLR Ex.PK and further deposed that on the police request Ex.PL, he declared injured Sukhdev Singh fit to make the statement vide his opinion Ex.PL/1. 12. This witness also deposed that on the same day he also medically examined injured Gurdev Kaur wife of Sukhdev Singh and found the following injuries on her person :- 1. A lacerated wound 1 cm x 0.5 cm x bone deep on the left bridge of nose. Fresh bleeding was present. 2. A reddish contusion 3 cms x 2 cms below the left eye.” 13. PW-2 Dr.R.P. Jindal proved the carbon copy of the MLR as Ex.PN and he further deposed that on the police request Ex.PO, he declared injured Gurdev Kaur as fit to make the statement and vide his opinion Ex.PM, he declared injury no.1 on the person of gurdev Kaur as simple in nature. 14. PW-2 Dr.R.P.Jindal further deposed that on the same day he also medically examined Kamaljit Kaur daughter of Sukhdev Singh and he noticed the following injuries on her person :- (1) A reddish contusion 6 cms x 2.5 cms on the lateral aspect of left leg 4" proximal to the lateral malleolus. (2) A reddish contusion 6 cms x 2.5 cms 3" proximal to injury no.1. (3) A reddish contusion 6 cms x 2 cms 2" proximal to injury no.2.” 15. This witness proved the carbon copy of the MLR of Kamaljit Kaur as Ex.PP and further deposed that on the police request Ex.PR, he declared Kamaljit Kaur as fit to make the statement vide his endorsement Ex.PR/1. 16. (3) A reddish contusion 6 cms x 2 cms 2" proximal to injury no.2.” 15. This witness proved the carbon copy of the MLR of Kamaljit Kaur as Ex.PP and further deposed that on the police request Ex.PR, he declared Kamaljit Kaur as fit to make the statement vide his endorsement Ex.PR/1. 16. Vijay Kumar (PW-3) has deposed that on 2.5.1996 Sukhdev Singh was issued Gate Pass Ex.PS for lifting 106 bags of wheat from the shop of M/s Sauni Ram & Sons for unloading the same in the Punjab Warehousing Corporation, Dhuri. 17. Jarnail Singh Patwari (PW-4) has proved the scaled site plan Ex.PT prepared by him at the instance of Sukhdev Singh. 18. Mohd. Sadique, Clerk of the office of D.T.O. Sangrur (PW-5) proved Registration Certificate of truck No.PAT 7271 which depicted that it was owned by Krishna Devi wife of Kaur Sain as Ex. PU. 19. Achhru Ram, Commission Agent, Bhasaur (PW-6) deposed that on 2.5.1996, his firm M/s Sauni Ram & Sons sold 106 bags of wheat and the said bags were loaded in the truck. He prepared the copy of the bill Ex.PR in this regard. 20. Head Constable Narsi Ram (PW-7) is a witness to the recovery of the utensils Ex.P-1to P-56 from Amritpal accused in pursuance of the statement made by him Ex.PW7/A. 21. Head Constable Kashmira Singh (PW-8) deposed that on 14.7.1996, in his presence Investigating Officer Sukhram got recovered registration certificate Ex.P57 and accused Surinder Singh got recovered writst watches Exs. P58 and Ex.P59 in pursuance to the statement made by Rajinder Singh and Surinder Singh Ex.PW8/A and Ex.PW8/B and further deposed that the same were taken into possession by him vide memo Ex.PW8/C and Ex.PW8/D. 22. ASI Amrik Singh (PW-9) deposed on 10.7.1996 SI Ranjit singh in his presence recovered 106 bags of wheat from the possession of Prem Rattan and Harjinder Singh, who were carrying it in the truck No.HR- 29/2545, which he took into possession under Section 102 Cr.P.C. This witness further stated that accused Hans Raj and Mulakh Raj, who were already in custody in case FIR No.90/1996 under Section 307 IPC, Police Station Bhawanigarh. Those bags pertain to the case property involved in case FIR No.90 of 1996. This witness also identified the bags Ex.P60 to P165 and also the truck HR 29/2545 Ex.P166 from which the bags were recovered. 23. Those bags pertain to the case property involved in case FIR No.90 of 1996. This witness also identified the bags Ex.P60 to P165 and also the truck HR 29/2545 Ex.P166 from which the bags were recovered. 23. Sukhdev Singh (PW-10) is the injured witness. He being the complainant has reiterated the prosecution version. He also identified accused Amit Pal, Ram Sarup out of the persons who remained in his house for 2/3 hours. He also deposed that he as well as his father were medically examined and his father died in the hospital on the next day due to the injuries suffered by him at the hands of the accused. He proved the utensils Ex.P-1 to P-56 and the watches Exs.P58 and P-59, statement Ex,PW10/A and the bags as Ex.P60 to P-165. 24. ASI Gian singh (PW-11) is a formal witness. 25. SI Sukhram Singh (PW-12) and Inspector Swaran Singh (PW- 15) are the investigating officers of the case. 26. Kamaljit Kaur (PW-13) and Gurdev Kaur (PW-14) also corroborated the prosecution version as given by Santokh Singh (PW-10). They also identified the accused as well as watches and utensils which were stolen from their house. 27. SI Parshotam Lal (PW-16) deposed that on 16.10.1996 he had recorded the statement of Gurcharan Singh son of Kartar Singh resident of Jodhpur Cheema. 28. When examined under Section 313 Cr.P.C. all the incriminating circumstances appearing against them in the evidence were put to the accused. However, they denied the same as wrong and pleaded their false implication in the case. 29. On scrutiny of the evidence, the trial Court while acquitting accused namely Prem Rattan and Harjinder Singh, convicted Rajinder Singh, Lakhiwnder Singh, Mulakh Raj and Hans Raj accused and sentenced them accordingly. Hence this appeal. 30. We have heard the counsel for the appellants Mr.Ranjan Lakhanpal, Mr.K.S.Boparai, and Mr.Yogesh Goel, Advocates and Ms. Rita Kohli, Sr.DAG.Punjab and have closely scrutinized the evidence with their able assistance. At the very outset, the counsel for the appellants Mr.Ranjan Lakhanpal, Mr. K.S.Boparai with Mr.Yogesh Goel, Advocates have not assailed the order of conviction recorded by the trial Court. Even otherwise, having re-appreciated the entire evidence, it transpires that the case of the prosecution stands fully supported by the Sukhdev Singh (PW-10) and his testimony stands corroborated by Kamaljit Kaur ( PW-13) and Gurdev Kaur (PW-14). K.S.Boparai with Mr.Yogesh Goel, Advocates have not assailed the order of conviction recorded by the trial Court. Even otherwise, having re-appreciated the entire evidence, it transpires that the case of the prosecution stands fully supported by the Sukhdev Singh (PW-10) and his testimony stands corroborated by Kamaljit Kaur ( PW-13) and Gurdev Kaur (PW-14). They being members of the family in all human probabilities, were present in the house. 31. The injuries on their person also lend assurance about their presence in the house. As regards the delay in lodging the FIR the occurrence took place in the wee hours of 3.5.1996, the statement was got recorded by Sukhdev Singh before Sub Inspector Swaran Singh on the same day at 9 a.m., on the basis of which DDR No.6 was recorded at 9.10 a.m. and the FIR was recorded at 10.30 a.m. The special report was received by the Illaqua Magistrate at 5 p.m. On the same day. Therefore, apparently there appears to be no delay in lodging the FIR. 32. As regards the non-examination of the independent witnesses, it may be observed that since the incident had taken place during mid night inside the house of Sukhdev Singh. There is no evidence on the record that the people from the locality had appeared at the scene of occurrence. There may be evidence that some people had gathered after the occurrence but they cannot be considered as eye witnesses. Even otherwise, Sukhdev Singh (PW-10) Kamaljit Kaur (PW-13) and Gurdev Kaur (PW-14) being the stamped witnesses would be the last persons to name the accused in place of the real culprits. 33. Having scrutinized the evidence of these three witnesses with great care and caution (as per the cardinal principle of law in case of relation witnesses), we observe that barring some minor discrepancies they have fully supported the prosecution case and nothing fruitful could be elicited by the counsel for the accused even after scorching cross-examination conducted upon them. As regards identification of the accused, though no source of the light has been shown in the rough site plan yet no evidence could be led by the accused in order to establish if there was no electricity in the house of the complainant. It may further be noticed that the accused stayed at the house of the complainant for sufficiently long time. It may further be noticed that the accused stayed at the house of the complainant for sufficiently long time. They continued threatening and beating him and his family, the witnesses also identified some of the accused in the Court, therefore, the present case cannot be said to be a case of doubtful identity. The recovery of 106 bags of wheat from some of the accused also lends assurance and points towards the guilt of the accused. The only substantive question which has been put forth by the counsel for the appellants before us is that though the accused were convicted for the offence under Section 460 IPC for committing murder of Kapoor Singh in the process of committing dacoity yet if the prosecution story is accepted, even then in the light of the opinion given by the Doctor the accused could not be condemned of the murder of Kapoor Singh as he died due to cardiac respiratory failure. 34. Having given our thoughtful consideration to this contention raised by the counsel for the appellants, we find some substance in the same. The occurrence took place on the wee hours of 3.5.1996 and Kapoor Singh died on the next day i.e. 4.5.1996 and his post mortem examination was conducted on the same day at 9.15 a.m. By Dr. Ramesh Sharma (PW-1). Though as per medico legal report and post mortem report there are seven injuries on the person of Kapoor Singh but all the injuries are on the non-vital parts of his body. Dr.Ramesh Sharma has also admitted that none of the injuries was on the vital part of the body of the deceased and injuries No.1,2,4,5,6 and 7 could be the result of fall against hard surface with force. The cause of death given by him was cardiac respiratory failure. Since he was not sure that this cardiac respiratory failure was the cause of death, therefore, he half heartedly stated that cardiac respiratory failure could be due to these injuries. Kapoor Singh deceased was a thin person of 86 years of age. Therefore, injuries on his body could not be said directly in approximity to his death. The intention of the accused may be to commit dacoity as they returned after doing the needful. Had they any intention to kill any one then they would have made Sukhdev Singh as target. Therefore, injuries on his body could not be said directly in approximity to his death. The intention of the accused may be to commit dacoity as they returned after doing the needful. Had they any intention to kill any one then they would have made Sukhdev Singh as target. Consequently, the offence committed by the accused falls within the purview of Section 459 IPC and not under Section 460 IPC. No other argument has been advanced nor any point has been raised by the counsel for the appellants. In the wake of the aforesaid discussions, we partly allow the appeal set aside the impugned judgment and convict the appellants under Section 459 IPC instead of Section 460 IPC and they are sentenced to undergo imprisonment for ten years without altering the sentence of fine. However, the sentence qua other offences shall remain intact. ——————————