JUDGMENT 1. - Aggrieved of their convictions, vide judgment dated 06.02.2002 by Additional Sessions Judge (Fast track), Anupgarh in Sessions Case No. 73/01 appellant Gurdeep Singh has preferred Jail Appeal No. 271/02 and appellant Dhanna Singh has preferred Regular Appeal No. 315/02 which are being decided by a common judgment. 2. Appellant Gurdeep Singh is convicted for the offence under Ss. 302, 302/34 IPC and also Ss. 3/25 and 5/27 of Arms Act and respectively punished for life imprisonment and fine of Rs. 1,000/- in default three months simple, one year's rigorous with a fine of Rs. 100/- in default 7 days simple and three years rigorous with a fine of Rs. 300/-, in default 15 days simple. 3. Appellant Dhanna Singh for offence under section 302/34 IPC is sentenced to life imprisonment with a fine of Rs. 1000/- in default three months simple imprisonment. 4. Alleged facts briefly stated as per prosecution, are that on August 19th, 2000 at 13.30 hrs, one Pala Singh submitted a written report (Ex.P/1) at P.S. Ramsinghpura stating that this year he has taken 20 bighas of land in village 1 DJM belonging to Kartar Singh for cultivation and Gwar and Jwar crop is there-he with his son Buta Singh and his grand son Soni Singh resides at the Dhani located at this very land. Stated in the FIR is that yesterday i.e. on August 18th around 13.00 hrs, he left for visiting his own village 13F where on that day at 11.00 hrs. Bira Singh of his won village informed that he has received telephonic message from 1 DGM that son Buta Singh and grand son Soni have been killed by someone. On this information, informing his relatives immediately he reached 1 DGM where in Dhani on separate cots were lying dead bodies of son and grand son-On this report FIR No. 116/2000 (Ex.P/2) registered for the offences under Section 302/34 IPC. 5. During investigation, 10 SHO PW/14 Vipin Sharma inspected the site, memo and site plan are Ex.P/3 and Ex.P/3A-positives and negatives of photographs taken are Ex.P/22 to Ex.P/27-sample of blood lying below the costs of dead bodies alongwith sample soil taken. Near kitchen were lying pieces of four used cigarettes which seized, memo prepared is Ex.P/15, 13 & 14. After postmortem Safa worn by Buta Singh, Kameez and Payjama worn by Soni seized and bodies handed over for last rites. Near kitchen were lying pieces of four used cigarettes which seized, memo prepared is Ex.P/15, 13 & 14. After postmortem Safa worn by Buta Singh, Kameez and Payjama worn by Soni seized and bodies handed over for last rites. The memos are Ex.P/4 to Ex.P/7 and 11, 12, 16 & 17. 6. Accused appellants Gurdeep Singh and Dhanna Singh both arrested 1 on 21st August at 15:15 hrs. and 15:30 hrs and on information of Gurdeep Singh given on 23rd August at 10.00 hrs, a 303 rifle alongwith four live and one used cartridge recovered. On information of Dhanna Singh on 23rd August at 10.30 hrs, a 12 bore rifle alongwith one live and one used cartridge z seized and sealed. Both these recovery is said to be from the pits dug by each appellant below a tree. Memos of these proceedings prepared are Ex.P/8, Ex.P/9, Ex.P/30, Ex.P/31 to 33, Ex.P/10, Ex.P/10A and the seal impressions are Ex.P/40 to Ex.P/42. Packets of articles delivered intact to laboratory, receipts and malkhana entries being Ex.P/18 to 21. 7. Postmortem of bodies conducted by Dr. Devi Lai PW/3, Medical officer, reports of which are Ex.P/8 and Ex.P/9 and subsequently, received FSL reports are Ex.P/38 & Ex.P/39. After usual investigation, charge-sheet submitted. 8. Of the 14 prosecution witnesses, examined Pala Singh PW/2 is father 1 and grand father of deceased persons respectively who lodged FIR. Chandrabhan PW/1 and Gurdev Singh PW/7 deposed as having lastly seen both deceased in Dhani of deceased with the appellants. Kartar Singh PW/5 is the owner of the land which is in the name of his maternal uncle who also deposes that one of the recovered gun Article 3 belongs to his brother 2 Harvinder who resides in America. Shivraj Singh PW/6 is motbir of site inspection, collection of sample etc. whereas, Lalji PW/4 is the motbir of recovery of guns. 9. Jamna Lai ASI registered the Fir and before S.I. Luna Ram (PW/13) arrests were made, whereas, Kheenv Dan PW/9 Head constable Janardan 2 PW/12 pertains to safe custody and delivering sealed packets to FSL. Tarsem Singh PW/1 1 is the photographer, SI Mani Ram PW/10 after completion of investigation, submitted the charge-sheet. PW/3 Dr. Devi Lai is the Medical Officer who conducted the postmortem. PW/14 Vipin Sharma is Investigating Officer and deposed accordingly. 10. Tarsem Singh PW/1 1 is the photographer, SI Mani Ram PW/10 after completion of investigation, submitted the charge-sheet. PW/3 Dr. Devi Lai is the Medical Officer who conducted the postmortem. PW/14 Vipin Sharma is Investigating Officer and deposed accordingly. 10. Here it may also be mentioned that recovered 12 bore gun Article 2, as per deposition of witnesses was owned by deceased Buta Singh and another gun 303 rifle owned by one Harvinder Singh. 11. Appellants when examined under Section 313 Cr.PC. stated that witnesses are telling lie and they are innocent. No defence evidence preferred. 12. Learned counsel for the appellants contended that evidence of last seen is not worthy of belief-recoveries as stated cannot be deemed to be true-guns are of deceased and one of owner of the land and certainly not of any appellant-no motive or reason even alleged given and that evidence full of material contradictions opposite to each other. 13. On the contrary, learned Prosecutor supported the conviction and contended that deceased were last seen in the evening with the appellants at the home of deceased and guns are recovered on the information of each appellants. 14. Considered rival contentions, perused the judgment of learned Additional Sessions Judge and carefully perused the record and evidence. 15. As per evidence of Medical Officer Dr. Devi Lai PW/3 and as also mentioned in postmortem reports Ex.P/8 and Ex.P/9, it is proved that on August 19th at 17.00 hrs. on the body of Buta Singh @ Gyani Singh aged 35 years, were injury of fire arm inlet wound 1.25x0.75 "on left of forehead and blackening and tattoo present-outlet wound 2.5x2" on right side of forehead and this portion was crushed with blood. No bullet or pallete recovered. The injury is of fire arm sufficient to cause death, which occurred with last 24 hours. 16. On the body of Soni, were (i) inlet wound of fire arm with blackening and tatoo 1.25"x0.75" on left side of neck (ii) one of outlet wound 3.5"x2" on right side of neck and neck vessels and parts badly damaged (iii) Lacerated wound 0.75"x0.5" on chest upper part (iv) lacerated wound 1.5"x0.5" on chest upper part. First two injuries of fire arm and remaining two are simple of and death caused within 24 hours due to above fire arm injury. 17. First two injuries of fire arm and remaining two are simple of and death caused within 24 hours due to above fire arm injury. 17. As by 11.00 hrs a message was given to Pala Singh at village at a distance of 60-70 kms and it stands proved that death caused during previous night i.e. night of 18th and 19th. 18. From the evidence of Pala Singh PW/2 and Incharge of P.S. PW/8 Jamna lal, it stand proved that PW/2 lodged the written report at 13.30 hrs on August 18th. The FIR reads like this : " fuosnu gS fd eSaus bl o"kZ Jh djrkjflag dax tVfl[k fuoklh 20-F rglhy dj.kiqj dh 20 ch?kk tehu ugjh 1 DJM esa vk/kk fgLlk ij dkLr dj j[kh gS ftlesa Qly Xokj o Tokj dkLr dh gq;h gS blh tehu esa djrkjflag dh <+k.kh cuh gqbZ gS ftlesa eSa o esjk yM+dk cwVkflag o esjk iksrk lksuhflag mez 13 lky jgrs gS dy fnukad 18-08-2000 dks djhc 1 cts fnu ds 1 DJM ls ekyhd ls feyus os esjs xkao 13-F rglhy xaxkuxj pyk x;k Fkk vkt lqcg djhc 11 cts eq>s esjs xkao ds fcjkflag us Hkh ,d 1 DJM ls VsyhQksu vk;k gS fd vkidk yM+dk cwVkflag mQZ Kkuh o iksrk lksuh gS dk fdlh us dRy dj fn;k gS ftl ij eSaus esjs fj'rsnkjksa lwpuk djrk gqvk 1 DJM <+k.kh esa vk;k rks ns[kk fd esjk yM+dk cwVkflag ds flj esa o lksuh ds xYys esa o Nkrh esa cUnwd dh xksyh yxh gq;h Fkh nksuksa dh yk'k pkjikbZ ij iM+h gS fjiksVZ nsrk gwaa dh d`ik dk;Zokgh dh tkosA " 19. As above, no one is named in the FIR except Bira Singh of his village who informed him of receipt of message of killing.First considering the recoveries, as per 10 Inspector PW/14 Vipin Sharma and SI PW/13 Luna Ram, both the appellants were arrested on August 21st and as per memos, respectively at 15:15 hrs and 15:30 hrs. Inspector PW/14 Vipin Sharma clearly states that both were arrested from the same house. So it appears that they were arrested together. According to PW/14 and memos, on August 23th at 10.00 hrs. Gurdeep informed him that a rifle with four live and one used cartridge is concealed by him in a pit dug by him at village Rehadbagga forest. Inspector PW/14 Vipin Sharma clearly states that both were arrested from the same house. So it appears that they were arrested together. According to PW/14 and memos, on August 23th at 10.00 hrs. Gurdeep informed him that a rifle with four live and one used cartridge is concealed by him in a pit dug by him at village Rehadbagga forest. Memo of information prepared is Ex.P/32 which bears thumb impression of Gurdeep and no which time noted is 10.00 hrs. According to I.O. PW/14 Vipin Sharma, as per information and instance of Gurdeep, rifle and cartridges recovered-memo of recovery is Ex.P/8. I.O. PW/14 further states that appellant Dhanna Singh informed him that he has concealed a gun and two cartridges, of which one is used, in a pit dug by him in the forest of village Rehadbagga, which he can get recovered, memo of this information is Ex.P/33, which bears thumb impression of Dhanna Singh @ Kaka. The date and time noted is August 23rd at 10.30 A.M.. Site plans and memo of both these recoveries together are Ex.P/10 and Ex.P/10A. In cross- examination PW/14 states that both the recoveries were made from the same place. Further from the site plan and memo Ex.P/10 & Ex.P/10A, it appears that pits dug were at a distance of 7 feet and both the pits were at a distance of 9 ft. to a tree. The recorded time of these recoveries Ex.P/8 and Ex.P/9 are 12.45 and 1.05 PM respectively. As such it clearly appears that the information from both these accused were about the same time or at interval of few minutes-recoveries are also almost simultaneous from same place below a same tree. 20. At the instance of Gurdeep Singh is recovered 303 rifle with four live and one used cartridge and at the instance of Dhanna Singh, 12 bore gun with one used and one live cartridge. Here it may be of significance that none of the guns belong to any of the accused, rather one belong to I deceased and one of joint owners of the land. Here it may be of significance that none of the guns belong to any of the accused, rather one belong to I deceased and one of joint owners of the land. Witness of this recovery is LaIji PW/4 and according to his deposition, at village 1 DJM, police recovered a 303 rifle with four live and one used cartridge which were found in a pit dug by Gurdeep Singh below a tree-LaIji PW/4 also states that at the same place, a pit was dug by Dhanna Singh and a 12 bore rifle with one live and i one used cartridge found, which was given to police by him. Memos of recovery are Ex.P/8, Ex.P/9 and site plan Ex.P/10 bears his signatures. This witnesses belongs to village 5K Anupgarh and way to 1 DJM from 5K village is via Anupgarh. Besides this distance between 1 DJM and Anupgarh is 20-25 kms. As per PW/4, land of one Bag Sigh was for sale so, to see this land, he was there with someone. PW/4 states that place of recovery was below same tree and for recovered 12 bore gun there, it was talked upon that it belongs to Harvinder Singh. As per memos, rifle 303 was got recovered from Gurdeep Singh and 12 bore gun from Dhanna Singh. Pala Singh PW/2, who is father and grand father of deceased, states that gun Article 2 belongs to his son which was possessed by his son and in cross-examination, he states that he does not know from where Buta Singh got it assembled but Buta Singh did not have any licence. PW/2 Pala Singh clearly accepts that possession was not as per law. As such, it is proved that gun said to be recovered at the instance of Gurdeep Singh belonged to deceased Buta Singh. 21. According to FSL report Ex.P/39, both 303 rifle and 12 bore gun were fired and empty cartridge (used) was also of 303 rifle. Another 12 bore gun ws not serviceable-cartridge were of 12 bore rifle. Chandrabhan PW/1 has also stated that the gun was with Buta Singh and he heard some talks regarding it. 22. 21. According to FSL report Ex.P/39, both 303 rifle and 12 bore gun were fired and empty cartridge (used) was also of 303 rifle. Another 12 bore gun ws not serviceable-cartridge were of 12 bore rifle. Chandrabhan PW/1 has also stated that the gun was with Buta Singh and he heard some talks regarding it. 22. Kartar Singh PW/5 states that this land is of their maternal uncle and power of attorney is given to his younger brother Anop Singh and is joint family of him, Harvinder, Jagtar and others-regarding gun, he states that earlier there was dispute for possession of this land, so gun was being possessed by Harvinder Singh who used to keep it there (on land) for safety as Harvinder often used to go on land. PW/5 also accepts that Buta Singh too of this land was with Bagris so they placed Buta Singh and his sons there. Significance of these facts cannot be denied. It is established that guns used to be there on Dhani itself and one gun was with Buta Singh. 23. Chandrabhan PW/1 states that after taking food etc. Gurdeep asked Buta Singh to let use (may be fire) gun but Buta Singh declined. Again as per Pala, Singh PW/2, when he came to Dhani, Chandrabhan in narration of incident stated that Gurdeep Singh asked Buta Singh to show him the rifle and Buta Singh told him that a cartridge costs Rs. 50-60 which amount shall be wasted and did not give the gun and warm exchanges followed, then Chandrabhan left for his own home. 24. So the fact appears that one gun belonging to But Singh for which atleast some material talks-not pleasant one ( rw rw eSa eSa ) between one appellant Gurdeep and deceased Buta Singh followed. Another gun though sad to be licensed one, but is of one of the owners, which used to be kept there because of some dispute about land possession with Bagri. 25. Coming to the point of appellants being last seen with the deceased, it may be observed hat in FIR as described above, there is neither mention of Chandrabhan PW/1 or anyone-nor there is mention of any narration of the said incident by Chandrabhan or any. According to evidence of Pala Singh PW/2, he rushed to Dhani where Chandrabhan lodged the FIR. According to evidence of Pala Singh PW/2, he rushed to Dhani where Chandrabhan lodged the FIR. If that be so, at least some mention of persons who are alleged to last seen and/or of narration by Chandrabhan or any one certainly ought to have been in the FIR. 26. Pala Singh PW/2 states that telephonic message to him was by Chandrabhan but this fact does not find mention in his statement during investigation Ex.D/2 and in FIR, it is stated that Bira Singh informed him of receiving such message. So it becomes little doubtful, if PW/2 Pala Singh directly received the telephone call-even if taking it granted that direct information was given on telephone to Pala Singh PW/2 then in normal course, Chandrabhan ought to have mentioned names of appellants as he stated during trial, particularly when as per PW/1 Chandrabhan appellants came there as relatives. 27. PW/2 further states that first he directly reached to Dhani where Chandrabhan, Shivraj and others were there and Chandrabhan told him to the effect that Gurdeep asked Buta Singh to show his rifle to him. On this Buta Singh said that a cartridge costs Rs. 50-60 which shall be wasted and did not give rifle. Then, some exchanges, certainly not pleasant followed and then Chandrabhan left for his own home. This information or any such narration by Chandrabhan to PW/2 also does not find mention in FIR Ex.P/1. Though such mention is in statement under Section 161 Cr.PC. Ex.D/1 in which again it is mentioned that such narration made to PW/2 Pala Singh only after he went back after lodging the FIR, whereas, in his statement Pala Singh PW/2 positively states that that on his immediately reaching at the Dhani, such narration was made by Chandrabhan in presence of others. So it become little hard to very safely accept that Chandrabhan did narrate like this prior to lodging of the FIR, particularly when appellants are also mentioned as relatives who were not found in the morning by PW/1 Chandrabhan. So it become little hard to very safely accept that Chandrabhan did narrate like this prior to lodging of the FIR, particularly when appellants are also mentioned as relatives who were not found in the morning by PW/1 Chandrabhan. PW/2 Pala Singh in definite terms stated that Chandrabhan PW/1 was stated this to him was mentioned by him at Police Station and then on asking by police officer, he got FIR Ex.P/1 written by someone (seth) to whom he also spoke narration as given by Chandrabhan for writing in the FIR-no reason of non-mentioning of this in FIR is explained by PW/2 Pala Singh. So Chandrabhan did narrate Pala Singh prior to lodging of FIR becomes doubtful and again if he narrated, non-mentioning of this in written FIR by Pala Singh gives rise to another question and if narrated prior to lodging FIR to PW/2 Pala Singh, again significant questions affecting the veracity arises. 28. Chandrabhan PW/1 states that he was working as labour on this field and Pala Singh went away to his village, thereafter at around 4-5 PM. when he, Buta Singh and Soni were working at the field, both appellants came and Buta Singh told him that as relative have come, he will prepare tea and Chandrabhan PW/1 to continue working in the field. Then, as per PW/1 Chandrabhan, Soni (13 years) accompanied his relative appellants for bath, then around 6.00 PM, Buta Singh came to this witness and asked where liquor shall be available and on his ascent, appellant Gurdeep Singh handed Rs. 50/- note to PW/1 Chandrabhan and he bought liquor from Rehadbaggi which consumed by all and one peg was also given to Chandrabhan. Then all of them dined-the food was prepared by Soni. Then Gurdeep asked Buta Singh to let him (Gurdeep) fire gun on which Buta Singh refused and then Chandrabhan left for home and came back only in the morning around 8.00 AM when both were found dead. Then this witness PW/1 Chandrabhan telephoned Pala Singh from village Ratnewala. PW/1 Chandrabhan himself owes and possesses 16 bighas of land and as mentioned in the FIR, this field taken by Pala Singh for cultivation 1 measured 20 bighas. Similarly, PW/1 Chandrabhan also states that he called someone who happen to be neighbour of Pala Singh, who must have informed Pala Singh. 29. PW/1 Chandrabhan himself owes and possesses 16 bighas of land and as mentioned in the FIR, this field taken by Pala Singh for cultivation 1 measured 20 bighas. Similarly, PW/1 Chandrabhan also states that he called someone who happen to be neighbour of Pala Singh, who must have informed Pala Singh. 29. Another witness regarding this is Gurdev Singh PW/7 who states that for some urgent work, he went to see Pala Singh at 1 DJM where his sister's son Buta Singh and his son Soni and their two relatives, the appellants were and also was a labour. When he asked for Pala Singh, Buta Singh told that he is out to village 13F. As per Gurdev Singh PW/7, then he left for Ganganagar and on next day around 1-2 PM, when he went to 13F to see Pala Singh found that both were killed and Pala Singh was there. In cross- examination, PW/7 states that he does not know if both appellants left soon after this witness left. Statements of this witness during investigation were recorded on August 25th i.e. after six days, though as per him recorded on same day. This witness resides at Sriganganagar and any specific reason for visiting on that day has not come forward and for this, on behalf of appellants is contended that he is purely a casual and chance witness so cannot be relied. This contention cannot be outrightly discarded, particularly, when his statements are taken after six days. 30. For the motive, learned Sessions Judge has mentioned that main aim was to obtain these rifles which were with Buta Singh and for this suffice it to mention that no evidence for this is on record except that appellant Gurdeep Singh asked Buta Singh to let him fire the rifle. The evidence is also that deceased Buta Singh did emphatically mention that cost of cartridge is Rs. 50-60 that shall be wasted. So in the opinion of the Court, this motive hardly has any legs. So no motive or reason for the incident appears. 31. Prosecution rests solely on the circumstantial evidence of last seen and that of recovery. Regarding recoveries, the alleged recovered guns belong to deceased and another owned by one of the land owners and also was dispute of possession though licence was in the name of land owner. So no motive or reason for the incident appears. 31. Prosecution rests solely on the circumstantial evidence of last seen and that of recovery. Regarding recoveries, the alleged recovered guns belong to deceased and another owned by one of the land owners and also was dispute of possession though licence was in the name of land owner. Last seen evidence is very weak one not very safe to rely on. 32. The evidence adduced do not inspire confidence enough for conviction and chain of circumstance is not complete. Reasonable doubts as above exist and the appellants are entitled to benefit of doubt and they are to be acquitted. 33. Accordingly, the appeal is allowed. The conviction and sentence of appellants (1) Gurdeep Singh and(2) Dhanna Singh passed by Additional Sessions Judge (FT), Anupgarh, the order impugned dated 06.02.2002 in Sessions Case No. 73/01 is set aside. Appellants Gurdeep Singh and Dhanna Singh are acquitted of the charges levelled against them. Appellant Dhanna Singh is on bail. His bail bonds are discharged. He need not surrender to his bail bonds. Accused Gurdeep Singh is behind the bars. He be released forthwith, if not required in any other case. 34. One gun is that of deceased Buta Singh which not licensed one. So said gun and cartridges are to be confiscated to State for use if serviceable otherwise be destroyed.Appeal allowed. *******