JUDGMENT Ashutosh Mohunta, J.:- Since the aforesaid criminal appeals have arisen out of one and the same judgement and order, therefore, both the said appeals are being decided by one judgement rendered in Crl.A. No.187-DB of 2001. 2. The challenge in these appeals is to the judgment and order dated 26.2.2001 passed by Learned Additional Sessions Judge, Gurdaspur vide which the appellants have been convicted and sentenced as under:- Sr. Name of accused Offence Sentence awarded No. Committed 1. Nirmal Singh 302 IPC Rigorous imprisonment for life and pay a fine of Rs.5,000/- which in default would further incarcerate the accused for rigorous imprisonment for One year. 326 r.w. Rigorous imprisonment for five Section 34 IPC years and to pay a fine of Rs.2,000/- which in default would further incarcerate the accused to undergo rigorous imprisonment for one year. 324 IPC Rigorous imprisonment for two years. 323 r.w. Section 34 IPC Rigorous imprisonment for one year. 2. Dilbagh Singh 302 IPC Rigorous imprisonment for life and pay a fine of Rs.5,000/- which in default would further incarcerate the accused for rigorous imprisonment for One year. 326 IPC Rigorous imprisonment for five years and to pay a fine of Rs.2,000/- which in default would further incarcerate the accused to undergo rigorous imprisonment for one year. 324 IPC r.w. Rigorous imprisonment for two Section 34 IPC years. 323 r.w. Rigorous imprisonment for one Section 34 IPC year. 3. That brief facts of the present case are that on 20.10.1993, complainant Joginder Singh made statement on the basis of which formal FIR (Ex.PD) was registered. Joginder Singh, complainant made statement to the effect that he alongwith his brothers and father used to reside in a house constructed in the land situated near village Khussar. The elder brother of his father Charan Singh also used to reside nearby as their land was joint. The joint land was partitioned. The complainant side owned 10 killas of land in which paddy crop was sown and some land was tilled with the help of a tractor. On 20/10/1993 at about 5.00 p.m., the complainant alongwith his younger brother Bhupinder Singh and their father Amrik Singh went to their fields on a tractor and there they started removing grass from the ‘Watts’. The complainant side owned 10 killas of land in which paddy crop was sown and some land was tilled with the help of a tractor. On 20/10/1993 at about 5.00 p.m., the complainant alongwith his younger brother Bhupinder Singh and their father Amrik Singh went to their fields on a tractor and there they started removing grass from the ‘Watts’. In the meantime, accused Charan Singh, uncle of the complainant, armed with a dang, his son Nirmal Singh armed with a Kirpan, Dilbagh Singh armed with a kirpan and Balraj Singh armed with Chhavi came on the land of the complainant and told them that they (complainant party) would be taught a lesson for removing the grass from the ‘Watts’. On saying so accused Charan Singh raised a lalkara that they all be put to death and solve the day-to-day fights, upon which accused Nirmal Singh gave a kirpan blow on the right side of the head of Amrik Singh and another Kirpan blow on his right arm. Accused Dilbagh Singh gave a blow on the right leg of Amrik Singh and Charan Singh gave a dang blow on his left thigh, as a result of whcih Amrik Singh fell down. Thereafter accused Balraj Singh gave a Chhavi blow on the right ear of Bhupinder Singh while accused Dilbagh Singh gave a kirpan blow on his right hand. Nirmal Singh gave two kirpan blows on the left hand and right foot of Bhupinder Singh. On this raula was raised by Joginder Singh which attracted Palwinder Singh Ex-Sarpanch of the Village Khussar, upon which all the accused ran away with their respective weapons. Thereafter both the injured were removed to the Civil Hospital by Joginder Singh Complainant and Palwinder Singh, where Amrik Singh was declared dead while Bhupinder Singh was referred to Civil Hospital Amritsar after giving medical aid. 4. In pursuance to the aforesaid FIR, inquest report Exhibit PW-1/D was prepared and special report in regard thereof was sent to the Illaqa Magistrate at 9-30 a.m. on 21-10-1993. 5. On 21.10.1993, S.I. Avtar Singh, Investigating Officer, PW13 lifted blood stained earth from two places and the same was put in a tin which was sealed and the same was taken into possession vide recovery memo Ex.PF. He also taken into possession hair of human being which were lying near the place of occurence on the ground vide recvoery memo Ex.PG. He also taken into possession hair of human being which were lying near the place of occurence on the ground vide recvoery memo Ex.PG. He prepared scaled site plan (Ex.PH) with correct marginal notes. The Investigating Officer had also taken into possession cloth of the deceased. On 28.10.1993, Nirmal Singh accused-appellant suffered disclosure statement (Ex.PQ) with regard to the concealment of one kirpan in his fields at a tubewell in a coup of straw and in pursuance of the his disclosure statement, he got recovered blood stained kirpan, which was taken into possession vide recovery memo Ex.PQ/2. Dilbagh Singh, accused-appellant also suffered disclosure statement (Ex.PR) with regard to the concealement of Kirpan and in pursuance of his disclosure statement, blood stained kirpan was got recovered by Dilbagh Singh whcih was taken into possession vide recovery memo Ex.PR/2. After completion of the investigation, challan against the accused was presented before teh Illaqa Magistrate, who committed the case to the Court of Sessions. 6. The accused were charge-sheeted under Section 302/307/326/324/ 323 read with Section 34 IPC by the learned Additional Sessions Judge, Gurdaspur vide charge sheet dated 10/8/1994, to which they pleaded not guilty and claimed trial. 7. During the course of trial accused Charan Singh died on 11/7/1999 and accordingly the case against him was abated. 8. The prosecution examined 14 witnesses while 6 witnesses were examined in defence by the accused, in the present case. 9. PW1 Dr. Sukhdeep Singh conducted post mortem examination on the dead body of Amrik Singh on 21.10.1993 and found the following injuries on his person:- “1. Incised wound 8 cm x 2 cm on the right parietal region, 7 cm above right ear pinna and 4 cm from the anterior hair line. Underlying bone was cut. 2. Incised wound 5 cm and 1 cm on the posterior aspect of lower 1/3rd of right forearm, 7 cm above wrist joint. Underline bones (ulna and radius) were cut. Major vessals and nerves were cut. Tendons were cut. 3. Incised wounds (three in number) side by side in an area of 19 cms x 4 cms on the antero lateral aspect of upper part of right leg, 8 cms from the right knee joint. Underlying both bones were cut (Tibia and fibula). Muscles, major vessals and nerves were cut. Clotted blood present. 4. Tendons were cut. 3. Incised wounds (three in number) side by side in an area of 19 cms x 4 cms on the antero lateral aspect of upper part of right leg, 8 cms from the right knee joint. Underlying both bones were cut (Tibia and fibula). Muscles, major vessals and nerves were cut. Clotted blood present. 4. Bluish black contusion 5cm x 3cm on the lateral aspect of lower part of left upper arm, 6 cms left elbow joint. 5. Super-ficial linear incised wound, 20 cms x liner on the back in lumper region, starting from 5 cms. above right iliac crest and extending obliquely towards the left side of lumber region.” 10. In the opinion of the Doctor, the death in this case was due to shock and haemorrhage as a result of multiple injuries which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. 11. PW2 Dr. Vivek Kumar Puri proved the bed head ticket (Ex.PA) of Bhupinder Singh. PW3 Dr. Amarjit Singh conducted X-ray examination of Bhupinder Singh and found cut fracture of proximal and of proximal phalnyx of right middle finger alongwith fracture of terminal phalnyx of right middle finger and the needle insitu in the right middle finger were seen and further amputation of terminal phalnyx of right ring finger was seen. Dr. Inder Mohan Sharma, PW4 brought the original bed head ticket of Bhupinder Singh. He stated that Bhupinder Singh was admitted on 21.10.1993 with 30 hours old injuries and on examination of right hand, he found lacerated wound of 2 inch on the radial palmer and ulnar aspect of index finger and there was lacerated wound running a cross middle ring and little finger at M/P joint. He also found compounded fractures dislocation at the base of proximal phalnyx of the middle finger. This witness further found that there was an other transverse lacerated wound over the over the tip of middle finger and distal phalnyx of ring finger was partially amputated through distal phalnyx and also there was a lacerated wound over dorsal, radial and palmer aspect of little finger. This witness proved the operation notes recorded by him. 12. PW5 Dr. Raj Kumar proved the operation notes Ex.PC/2 on the bed head ticket (Ex.PC). 13. PW12 Dr. Avnish Bhagat accompanied the Doctors at the time of operation of Bhupinder Singh. PW14 Dr. This witness proved the operation notes recorded by him. 12. PW5 Dr. Raj Kumar proved the operation notes Ex.PC/2 on the bed head ticket (Ex.PC). 13. PW12 Dr. Avnish Bhagat accompanied the Doctors at the time of operation of Bhupinder Singh. PW14 Dr. Rajinderpal Singh medico-legally examined Bhupinder Singh and found the following 9 injuries:- “1. An incised wound of 10cm x 3cm present on palmer aspect of right hadn extending from base of right little finger to the proximal interphengal joint of right index finger (including the base of little finger, ring finger, middle finger and index finger of righ hand). Depth of wound not probed. Blood clotted present. 2.The distal phalnyx of right ring finger is amputated at its tip marginal were incised, bleeding present. 3. Incised wound of 2.5cm x 1 cm was present on tip of the right middle finger. Depth not probed. Clotted present. 4. An incised wound of 2cm x 1cm was present on palmer aspect of base of left side middle finger. Clotted blood was present. Depth of wound was not probed. 5. An incised wound of 2cm x 1cm present on medial (iner) side middle of the left index finger. Clotted blood was present. Depth was probed. 6. Incised wound of 5cm x 1cm muscle deep was present on the lower side of the heel. 7. Surgical Pressure bandage was present on the head. 8. Complain of chest paiend on the left side. 9. Complain of pain on the left shoulder joint.” 14. Injury No.1 to 6 on the person of Bhupinder Singh were opined to be of sharp edged weapon including the kirpan. 15. PW6 Joginder Singh is the complainant at whose instance the present case was registered. He has given the details of occurrence as confined in his statement (Ex.PD). 16. PW7 Bhupinder Singh is the injured eye witness. He has endorsed the statement of Joginder Singh, complainant and has given the details of injuries received by him at the time of occurrence. 17. PW9 Manjit Singh, Kanungo proved the aks-shajra (Ex.PJ). 18. PW13 S.I. Avtar Singh is the Investigating Officer and he had given the details of investigation conducted by him as stated above. 19. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. were recorded and all the allegations appearing in evidence were put to them. PW9 Manjit Singh, Kanungo proved the aks-shajra (Ex.PJ). 18. PW13 S.I. Avtar Singh is the Investigating Officer and he had given the details of investigation conducted by him as stated above. 19. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. were recorded and all the allegations appearing in evidence were put to them. They denied the allegations and pleaded innocence. 20. The learned Trial Court after pursuing the record of the case and hearing the counsel for the parties, convicted and sentenced the appellants herein for the offences as mentioned above and by giving benefit of doubt to accused Balraj Singh for having not participated in the occurrence, acquitted him of the charges levelled against him. 21. Learned counsel for the appellants has argued that a false case has been thrusted upon the appellants in as much as there is delay in registration of the present FIR against the appellants and further delay in sending the special report to the Illaqa Magistrate. He further argued that there is many contradiction between the ocular and medical evidence available on record and further that the place where the occurrence took place belong to Swaran Singh over which the complainant party had no concern and so therefore the accused party were the aggressors in as much as they entered into the fields over which they had no right to do so and committed the present gruesome murderous assault by killing Amrik Singh and injuring Bhupinder Singh. The learned counsel further argued that even if at all, for the sake of arguments, it is held that the prosecution has proved its case beyond a shadow of doubt, even then the appellants are to be convicted for their individual acts especially when accused Balraj Singh, though having participated in the occurrence as per the FIR, by giving benefit of doubt, stands acquitted in the present case by the learned Trial Court. 22. However, the learned State Counsel while controverting the aforesaid pleas has stated that the prosecution has proved its case to the hilt which is duly supported by the eye witness account of PW-7 Bhupinder Singh (injured) duly corroborated by PW-6 Joginder Singh (Complainant) as well as the medical evidence available on record. 22. However, the learned State Counsel while controverting the aforesaid pleas has stated that the prosecution has proved its case to the hilt which is duly supported by the eye witness account of PW-7 Bhupinder Singh (injured) duly corroborated by PW-6 Joginder Singh (Complainant) as well as the medical evidence available on record. It is further argued that the motive in the present case is apparent in as much as the complainant party were removing the grass from the ‘Watt’ and since the accused party wanted to do the same on the land of the complainant side, so therefore Amrik Singh (father of the complainant) has been murdered and his son Bhupinder Singh has been injured. 23. We have heard the learned counsel for the parties and are of the considered view that the present appeal as far as it relates to Nirmal Singh (appellant no.1) deserves to be dismissed while for Dilbagh Singh (appellant no.2) deserves to be partly accepted. 24. It is apparent from the record that Amrik Singh suffered as many as five injuries on his person, of which three were incised wounds as per post mortem report, out of which Nirmal Singh gave a kirpan blow on the right side of the head of Amrik Singh (deceased) which as per PW-1 Doctor Sukhdeep Singh, being fatal was sufficient in the ordinary cause of nature to cause his death. 25. Even the injured eye witness PW-7 Bhupender Singh who too received as many as 9 injuries on his person at the hands of the accused, out of which injuries No.1, 2 & 3 were declared as grievous in nature has fully supported the case of the prosecution as far as consistency and truthfulness in evidence is concerned. As a result of injuries sustained on his person, he too suffered a cut on his right middle finger and amputation of terminal phalynx of right ring finger as per X-ray examination Exhibit PB conducted by Doctor Amarjit Singh, PW-3. 26. The occular version given by the complainant PW6 and injured witness Bhupinder Singh PW7 has been duly corroborated by medical evidence. 27. Further both the accused suffered disclosure statement Exhibit PQ and PR and in pursuance thereof got recovered their respective Kirpans vide recovery Memos Exhibit PQ/2 and PR/2. The said recoveries effected from the disclosed place at their instance, shows their participation in the occurrence. 28. 27. Further both the accused suffered disclosure statement Exhibit PQ and PR and in pursuance thereof got recovered their respective Kirpans vide recovery Memos Exhibit PQ/2 and PR/2. The said recoveries effected from the disclosed place at their instance, shows their participation in the occurrence. 28. Apart from the above, Bhupender Singh PW7 is a stamped witness, as he has received six incised wounds on his person. He has categorically stated that Charan Singh raised lalkara, upon which Nirmal Singh gave a kirpan blow on the right side of the head of Amrik Singh. Nirmal Singh also gave kirpan blow to Amrik Singh on his right arm. Thereafter, the other accused also inflicted injuries on the deceased as well as on PW7 Bhupender Singh. The testimony of this witness has not been shaken in any manner. His testimony corroborates the medical evidence and it is thus, clear tht Amrik Singh died as a result of fatal blows at the hands of Nirmal Singh, accused. 29. The statement of the witnesses are further corroborated by the fact that the first information report was lodged promptly. The occurrence had taken place on 20.10.1993 at about 5.00 p.m. and statement of Joginder Singh, complainant was recorded and completed at 7.15 p.m. The witnesses have supported the version given before the Police and there have been no contradictions in the statements of the eye witnesses. 30. Further the motive in the present case is apparent in as much as, the complainant party were removing the grass from the ‘Watts’ and since the accused party wanted to do the same on the land of the complainant side, so therefore Amrik Singh (father of the complainant) has been murdered and his son Bhupinder Singh has been injured. The said fact leaves no manner of doubt that the accused party was aggressors having entered the fields of the complainant side for committing the said gruesome act and thus, appelalnt Nirmal Singh has rightly been convicted and sentenced by the learned Trial Court. 31. In view of the above, we have no hesitation in upholding order of conviction and sentence recorded against Nirmal Singh (appellant no.1) by the learned Trial Court and so we accordingly dismiss his appeal. 32. 31. In view of the above, we have no hesitation in upholding order of conviction and sentence recorded against Nirmal Singh (appellant no.1) by the learned Trial Court and so we accordingly dismiss his appeal. 32. However, as far as Dilbagh Singh (appellant no.2) is concerned, no injury has been inflicted by him on the person of the deceased on any vital part of the body except giving a kirpan blow on the right leg of the deceased, which admittedly as per post-mortem report of the deceased (Amrik Singh) was not the cause of his death. Further, Dilbagh Singh had given a kirpan blow on the right hand of Bhupinder Singh, (PW/7- injured), which as per Doctor Rajinderpal Singh, PW-14 was declared as grievous but not dangerous to life. The said injury admittedly was on non vital part of the body. Further admittedly, no blow/injury was inflicted by Dilbagh Singh either on the injured or on the deceased, twice which thus evidently shows the lack of his sharing common intention with his other co-accused so as to attract the penal provisions of section 34 IPC. The injuries inflicted by accused Dilbagh Singh on non vital parts of the body of the deceased as well as the injured, not being dangerous to life, at the best falls within the ambit of Section 326 I.P.C., and therefore, we are of the considered view after taking into account all the attending circumstances and the fact that appellant No.2 (Dilbagh Singh) did not share common intention to kill with his other co-accused and also that the occurrence related to the year 1993 and further that the sword of domiciles had been hanging on accused Dilbagh Singh for the last about 16 years, we deem it appropriate to convict accused Dilbagh Singh for his individual act in the present case and as such modification in quantum of sentence awarded to him is required to be made. 33. We accordingly, set aside the conviction of accused Dilbagh Singh (appellant no.2) recorded Under Section 302/324/323 I.P.C. by the learned Trial Court but uphold the conviction recorded against him by the learned Trial Court Under Section 326 IPC. However, in view of the facts and circumstances of the present case as stated above, the sentence of rigorous imprisonment of five years awarded to him under section 326 IPC by the Ld. However, in view of the facts and circumstances of the present case as stated above, the sentence of rigorous imprisonment of five years awarded to him under section 326 IPC by the Ld. Trial Court is modified and is reduced to rigorous imprisonment for three years. 34. With the aforesaid finding of acquittal of Dilbagh Singh, appellant No.2 under Section 302/324/323 IPC, and with the aforesaid modification in quantum of sentence of Dilbagh Singh (Appellant No.2), the appeal stands partly allowed. Appellant no.1 (Nirmal Singh), if on bail be taken into custody forthwith so as to serve the remaining part of his sentence under the intimation to this Court and his bail bonds and surety bonds be forfeited. Accused Dilbagh Singh (appellant No.2), if on bail, be also taken into custody to serve his remaining part of the sentence forthwith. However, if accused Dilbagh Singh (Appellant no.2) has already completed the modified sentence of three years Under Section 326 I.P.C, he be released from custody forthwith and in furtherance thereof his bail bonds and surety bonds be discharged. 35. Finding of acquittal of Balraj Singh recorded by the learned trial Court requires no interference as there is no compelling and substantial reason for doing and further presumption of innocence of Balraj Singh, accused-respondent is strengthened by the S.P. Headquarter who vide his enquiry report dated 2.11.1993 (Ex.DA) exonerated Balraj Singh and by acquittal of the said accused by the learned trial Court, because there is consistent defence evidence on record that Balraj Singh, accused had not participated in the occurence and i.e. why he was declared innocent and his name was figured in column No.2 of the challan submitted under Section 173 Cr.P.C. and the said accused was subsequently summoned on the application of the State counsel. Therefore, the State appeal filed by the State of Punjab is dismissed. ------------