JUDGMENT T. P. S. MANN, J. (1) BY a common judgment the Court intends to dispose of the present appeal filed by Jagjinder Singh alias Bittu and Crl. Appeal No.95-DB of 2002 filed by Jagwinder Singh alias Jaggi as both the appeals have arisen out of judgment and order dated 14.1.2002 passed by Additional Sessions Judge, Patiala. Vide impugned judgment and order, the trial Court convicted the two appellants under Section 302, IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs.l0,000/-each. In default of payment of fine, they were directed to further undergo rigorous imprisonment for one year. Jagjinder Singh alias Bittu was also convicted under Section 307, IPC while Jagwinder Singh alias Jaggi appellant under Section 307 read with Section 34, IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for 6 months. All the sentences were ordered to run concurrently. (2) THE two appellants, along with Balbir Singh, Jarnail Singh and Jaswant Singh were tried for offences under Sections 302, 307, 148, 149, IPC on the allegations that on 11.9.1998 at about 8.00 p.m. in the area of village Nandpur Kesho, they were members of unlawful assembly and committed the offence of rioting with deadly weapons. THE two appellants were also charged for committing the murder in furtherance of common object of the unlawful assembly by intentionally causing death of Ishar Singh and thereby liable under Section 302, IPC while their co- accused were liable under Section 302 read with Section 149, IPC. Jagjinder Singh alias Bittu appellant was also charged for causing injuries to Gurdeep Singh and Sital Singh in furtherance of common object of the unlawful assembly by firing from his gun with such intention/knowledge and under such circumstances that if by that act he had caused the death of Gurdeep Singh and Sital Singh, he would have been guilty of murder and, therefore, committed an offence punishable under Section 307, IPC while Jagwinder Singh alias Jaggi and the three other accused being members of unlawful assembly committed the offence punishable under Section 307 read with Section 149, IPC. The occurrence in question had taken place on 11.9.1998 at 8.00 p.m. at a place near the milk dairy in village Nandpur Kesho. The occurrence in question had taken place on 11.9.1998 at 8.00 p.m. at a place near the milk dairy in village Nandpur Kesho. In the occurrence, Ishar Singh, Gurdeep Singh and Sital Singh had received fire arm injuries at the hands of two appellants, who were armed with .12 bore DBBL gun each. After the occurrence, the three injured were taken to Rajindra Hospital, Patiala but on the way Ishar Singh died. The police was informed by the hospital authorities that Gurdeep Singh and Sital Singh were lying admitted due to receipt of gun shot injuries while Ishar Singh had died before reaching the hospital and his dead body had been sent to mortuary. Pursuant to the information received, Inspector Ashish Kapoor reached Rajindra hospital, Patiala and obtained the opinion from the doctor as to whether the two injured were fit to make statement or not. Both the injured were declared fit to make statement. The police then recorded the statement of Gurdeep Singh which was completed on 12.9.1998 at 1.40 a.m. As the statement disclosed commission of cognizable offences, Inspector Ashish Kapoor made an endorsement and sent the same through C. Jarnail Singh to Police Station Sadar, Patiala for registration of FIR. Consequently, FIR No.314 dated 12.9.1998 was registered at Police Station Sadar, Patiala at 2.15 a.m. for offences under Sections 302, 307, 506, 148/ 149, IPC and Sections 25/27 of the Arms Act. The special report was, thereafter, received by the Ilaqa Magistrate on 12.9.1998 at 6.00 a.m. (3) IN the statement before the police on the basis of which aforementioned FIR was registered, complainant Gurdeep Singh son of Devinder Singh, caste Jat, resident of village Nandpur Kesho, aged about 14/15 years, stated that he was studying in 9th class in the village school. On 11.9.1998 at about 8.00 p.m. he, alongwith Sital Singh son of Prem Singh and Ishar Singh son of Bant Singh, residents of the village was standing near the milk dairy and talking to each other. IN the meantime, accused Balbir Singh armed with a gandasi, Jagjinder Singh alias Bittu armed with a rifle, Jarnail Singh armed with a kirpan, Jagwinder Singh alias Jaggi armed with a rifle and Jaswant Singh armed with a gandasi, all residents of the same village, came towards the milk dairy. IN the meantime, accused Balbir Singh armed with a gandasi, Jagjinder Singh alias Bittu armed with a rifle, Jarnail Singh armed with a kirpan, Jagwinder Singh alias Jaggi armed with a rifle and Jaswant Singh armed with a gandasi, all residents of the same village, came towards the milk dairy. Balbir Singh raised a lalkara that the complainant and his companions be surrounded and not allowed to go scot-free. Jagwinder Singh alias Jaggi loaded his rifle and fired towards the complainant and his companions in order to kill them. The fire hit Ishar Singh on his chest, stomach and arms, as a result whereof, Ishar Singh fell down. Jaswant Singh and Jarnail Singh raised lalkaras that the complainant and others be not allowed to go. Jagjinder Singh alias Bittu then loaded his rifle and fired which hit complainant Gurdeep Singh on his chest, arm and left eye whereas Sital Singh was hit on his right arm, stomach and left eye. Some pellets also hit Ishar Singh on his private parts. The accused while raising lalkaras left the spot. An alarm was raised by the complainant and his companions which attracted Nirmal Singh, Jagpal Singh, Joginder Singh, Gursewak Singh and Labh Singh, who reached the spot and witnessed the entire occurrence. At that time, light was being emitted by an electric bulb. A vehicle was, thereafter, arranged and the three injured were taken to Rajindra Hospital, Patiala for treatment. On the way, Ishar Singh died, whereas Gurdeep Singh and Sital Singh were admitted in the emergency ward of Rajindra Hospital, Patiala. (4) THE cause of occurrence was that the candidate belonging to the party of Balbir Singh accused had lost the election to the post of Sarpanch and for that reason, Balbir Singh and others had caused injuries. During investigation of the case, the police recorded the statements of Sital Singh injured and other witnesses. The police, thereafter, visited the place of occurrence and prepared rough site plan. All the five accused, including the two appellants, were arrested on 21.9.1998. The appellants were found carrying .12 bore DBBL gun each which were taken into possession. (5) UPON completion of investigation and presentation of challan, followed by commitment of the case, the appellants and their co- accused were charged, as mentioned above to which they pleaded not guilty and claimed trial. The appellants were found carrying .12 bore DBBL gun each which were taken into possession. (5) UPON completion of investigation and presentation of challan, followed by commitment of the case, the appellants and their co- accused were charged, as mentioned above to which they pleaded not guilty and claimed trial. (6) IN support of its case, the prosecution had examined 14 witnesses. PW-1 Dr. Beant Singh deposed that he had medico-legally examined complainant Gurdeep Singh on 11.9.1998 at 9.35 p.m. and found the following injuries on his person: 1. .3 cm. x .3 cm. rounded pellet injury on anterior abdominal in midline 5 cm. below the umbilicus. Advised x-ray. 2. 7 cm. from midline on right side .3 cm. x .3 cm. injury on anterior abdominal wall. Advised x-ray. 3. Pellet injury 8 cm. from midline on right side of anterior abdominal wall. Advised x- ray. 4. Pellet injury 10 cm. from midline on right side anteriorly on costal margin. Advised x-ray. 5. Pellet injury on chest anteriorly 2 cm. from midline on left side. Advised x-ray. 6. Pellet injury on chest wall anteriorly 9 cm. from midline, 2 cm. below the right nipple. Advised x-ray. 7. Pellet injury 5 cm. from midline on right clavicular region. Advised x-ray. 8. Left side of nose 2 cm. below the left eye and 2 cm. from the bridge of nose. Advised x-ray. Pellet injury 10 cm. from midline 5 cm. above the left costal margin anteriorly. Advised x-ray. (7) PELLET injury on the base of left thumb anteriorly 1 cm. below the wrist joint. Advised x-ray. 11.3 cm above wrist anteriorly radial side. Advised x-ray. 12. 5 cm. above the wrist joint anteriorly radial side. Advised x-ray. The duration of the injuries was within 4 hours. The kind of weapon used was gun shot and multiple pellets. 9. On the same day at about 9.45 p.m., PW-1 Dr. Beant Singh had medico legally examined Sital Singh and found the following injuries on his person. 1. PELLET injury 5 cm. above the wrist on anterior aspect of left forearm medially. Advised x-ray. 2. PELLET injury on posterior aspect of right forearm 10 cm. above the wrist joint. Advised x-ray. 3. PELLET injury 2 cm. below the tip of olecranon process of right forearm. Advised x- ray. 4. PELLET injury on chest wall anteriorly 10 cm. from midline of left side 1 cm. Advised x-ray. 2. PELLET injury on posterior aspect of right forearm 10 cm. above the wrist joint. Advised x-ray. 3. PELLET injury 2 cm. below the tip of olecranon process of right forearm. Advised x- ray. 4. PELLET injury on chest wall anteriorly 10 cm. from midline of left side 1 cm. above the costal margin. Advised x-ray. The duration of the injuries was within 4 hours. Kind of weapon used was gun shot. On seeing the x-ray report, the doctor had declared the injuries as simple. 10. PW-2 Dr. Deepak Walia deposed that he had conducted post-mortem on the dead body of Ishar Singh on 12.9.1998 and found the following injuries: 1. 30 holes were present on chest, abdomen, right arm, right thigh, left thigh and pelvis. Chest had 8 holes. abdomen had 9 holes, right arm 8 holes. right thigh 2 holes, left thigh 1 and pelvis. 2. The holes were round in shape with abrasion collar. Mostly they were skin deep but two pellets entered left side of chest injuring left lung and one pellet entered pericardium and heart muscle. Pericardium cavity contained about 150 cc of blood. Left pleural cavity contained 350 cc of fluid. Diameter of hole was from 1 ml. to 3 cm. Injuries were caused by gun shot fire. Peritoneum was lacerated at two places and peritoneal cavity contained about 200 cc of blood. Stomach and its contents - injury was present on front of stomach and it contained about 150 cc of fluid. Liver - one hole was present on anterior surface of right lobe of liver. The cause of death in the opinion of the doctor was due to haemorrhage and shock as a result of injuries to left lung and heart by gun shot. All the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The time between the injuries and death was about an hour and between death and post-mortem about 12 hours. (8) PW-3 Dr. Baljit Kaur testified that she had conducted x-ray examination of Gurdeep Singh and had seen multiple radio opaque shadows simulating pellets in the chest, abdomen, left wrist, left forearm and skull. However, there was no bony injury noticed in any of the x-rays. Pw-4 Harbhajan Singh, Sr. (8) PW-3 Dr. Baljit Kaur testified that she had conducted x-ray examination of Gurdeep Singh and had seen multiple radio opaque shadows simulating pellets in the chest, abdomen, left wrist, left forearm and skull. However, there was no bony injury noticed in any of the x-rays. Pw-4 Harbhajan Singh, Sr. Assistant, Dental College, Patiala, deposed that he had brought the bed-head tickets, along with concerned record of Gurdeep Singh and Sital Singh from the Central Registration Office, Rajindra Hospital, Patiala. Pw-5 Gurnam Singh, Reader to Additional District Magistrate, Patiala stated that the Additional District Magistrate, Patiala had granted sanction for prosecution of Jagwinder Singh under Section 25 of the Arms Act. Pw-6 C. Karnail Singh and Pw-7 C. Faquir Chand tendered into evidence their affidavits Exs. PH and PI, respectively. (9) COMPLAINANT-Gurdeep Singh had appeared before the trial Court as PW-8 and deposed about the manner in which the occurrence had taken place. Nirmal Singh, who was attracted to the place of occurrence on hearing the alarm raised by the complainant and others and witnessed the incident stepped into the witness box as PW-9. He corroborated the testimony of PW-8 Gurdeep Singh. PW-10 HC Sahib Singh tendered into evidence his affidavit Ex.PN, whereas Indresh Khanna, Draftsman, proved the scaled site plan Ex.PO which he had prepared after visiting the spot on 12.9.1998 in the presence of Nirmal Singh and Labh Singh. PW-12 Dr. Amarbir Singh stated that he had attended Gurdeep Singh on 11.9.1998, who had come with the alleged history of fight and sustaining of injuries as per medico-legal report. He had prepared the case summary. The patient was discharged in a satisfactory condition on 17.9.1998. PW-13 DSP Ashish Kapoor, who, on the day of occurrence, was serving as Inspector and posted as SHO, Police Station Sadar, Patiala, deposed about recording of the statement of complainant-Gurdeep Singh on the basis of which he had directed registration of FIR. He also stated about the various steps taken by him during investigation of the case. PW-14 HC Bhupinder Singh tendered into evidence his affidavit Ex.PFF. The prosecution also tendered into evidence report Ex.PGG of Forensic Science Laboratory, Punjab, Chandigarh and gave up Sital Singh, Janak Singh, Hardev Singh, Bachan Singh, Khem Singh and Darbara Singh as having been won over by the accused and Jaspal Singh, Gursewak Singh and Labh Singh as unnecessary. PW-14 HC Bhupinder Singh tendered into evidence his affidavit Ex.PFF. The prosecution also tendered into evidence report Ex.PGG of Forensic Science Laboratory, Punjab, Chandigarh and gave up Sital Singh, Janak Singh, Hardev Singh, Bachan Singh, Khem Singh and Darbara Singh as having been won over by the accused and Jaspal Singh, Gursewak Singh and Labh Singh as unnecessary. (10) WHEN examined under Section 313 Cr.P.C, all the accused pleaded innocence. They stated that they had been falsely implicated in the case due to enmity and party- faction. However, none of the accused examined any evidence in defence. After hearing learned counsel for the parties and going through the evidence brought on record, the trial Court gave benefit of doubt to the three co-accused of the appellants and acquitted them of the charges against them. The appellants were convicted and sentenced, as mentioned above. (11) MR P. S. Kang, learned counsel for Jagjinder Singh alias Bittu appellant had submitted that he had been falsely implicated in the case on account of enmity and party-faction. The prosecution did not examine Sital Singh in support of the ocular account of the occurrence despite the fact that he was an injured witness. Instead, it relied upon the testimonies of PW-8 Gurdeep Singh and PW- 9 Nirmal Singh. PW-9 Nirmal Singh had not received any injury in the occurrence. He was set up as an eye-witness as he was nephew of the deceased. It was also submitted that though two empties had been allegedly picked up from the spot on 12.9.1998, yet they were sent to the Forensic Science Laboratory only on 29.9.1998. Much before the receipt of the empties in the laboratory the licenced firearm belonging to the appellant was already in the possession of the police. Therefore, no reliance can be placed upon the report Ex.PGG of the Forensic Science Laboratory vide which one of the two empties was found to have been fired from the left barrel of .12 bore DBBL gun belonging to Jagjinder Singh alias Bittu. Therefore, no reliance can be placed upon the report Ex.PGG of the Forensic Science Laboratory vide which one of the two empties was found to have been fired from the left barrel of .12 bore DBBL gun belonging to Jagjinder Singh alias Bittu. It had also been submitted that it was highly improbable if Jagjinder Singh alias Bittu appellant while shown standing at point 'H' in the scaled site plan Ex.PO prepared by PW Indresh Kumar, Draftsman, would have been able to hit Gurdeep Singh and Sital Singh injured shown standing at points 'B' and 'C. (12) MR D. S. Gurna, learned counsel representing Jagwinder Singh alias Jaggi appellant had submitted that he had no motive to participate in the occurrence as he was not related to Balbir Singh and Jagjinder Singh alias Bittu accused. In the election to the post of Sarpanch, the party man of Balbir Singh had lost the election. It had also not been shown by the prosecution if Jagwinder Singh alias Jaggi was a party man of Balbir Singh accused. He also attacked the prosecution case regarding late sending of empties recovered from the spot to the Forensic Science Laboratory as in the meantime, the firearm said to have been used by him, had already been recovered by the police. Moreover, there was no evidence on the record that this appellant possessed .12 bore DBBL gun as the licence said to have been issued to him for the same had not been brought on record. It had also been submitted by referring to site plan Ex.PO prepared by PW Indresh Khanna, Draftsman, that the appellant while shown standing at point 'F' would not have been able to hit Ishar Singh, since deceased shown standing at point 'A'. It had further been submitted that the prosecution tried to improve its case regarding availability of light at the spot in which the complainant party could have identified the assailants. Learned State counsel had submitted that the prosecution had examined cogent and convincing evidence in the nature of statements of PW-8 Gurdeep Singh and PW-9 Nirmal Singh about the manner in which the entire occurrence had taken place. Gurdeep Singh had also received injuries in the occurrence and, therefore, his presence at the spot could not be doubted. At the time of occurrence, there was sufficient light available in which the complainant party could have identified the assailants. Gurdeep Singh had also received injuries in the occurrence and, therefore, his presence at the spot could not be doubted. At the time of occurrence, there was sufficient light available in which the complainant party could have identified the assailants. Moreover, mere fact that Jagwinder Singh alias Jaggi appellant had no motive of his own, was not sufficient to disbelieve the prosecution case against them. (13) THE argument of the defence regarding the places where the complainant party was standing and whether the appellants while shown standing at points 'F' and 'H' could actually see the complainant party, had been based on the scaled site plan Ex.PO which had been made a part of the paper book prepared for this Court. If the same is minutely examined, the defence was justified in arguing that the persons shown standing at points A, B and C could not have seen the assailants, especially, the two appellants at points F and H. However, the original scaled site plan Ex.PO is also available in the record from which it can safely be concluded that the complainant party shown standing at points A, B and C could have easily identified the assailants, especially, the appellants shown standing at points F and H. THErefore, no benefit can be extended to the appellants on the argument based by them on the copy of the scaled site plan Ex.PO which is part of the paper book prepared for this Court as the same is at variance with the original site plan Ex.PO. (14) IN the FIR Ex.PDD which was based upon the statement Ex.PJ made by complainant Gurdeep Singh, it was specifically stated that the occurrence had been witnessed in the light emitted by an electric bulb. The said electric bulb had been shown at point 'J' in the scaled site plan Ex.PO. The distance between the complainant party and the assailants being about 45 feet, as stated against note No. 11, it can safely be assumed that the complainant party had been able to identify the assailants in the said light. IN his statement Ex.PJ, complainant Gurdeep Singh had stated that the electric bulb was on and in its light, he and others had witnessed the entire occurrence. However, while appearing as PW-8, he stated that the occurrence had been witnessed in the light of the bulb which was affixed on the shop of Dr. IN his statement Ex.PJ, complainant Gurdeep Singh had stated that the electric bulb was on and in its light, he and others had witnessed the entire occurrence. However, while appearing as PW-8, he stated that the occurrence had been witnessed in the light of the bulb which was affixed on the shop of Dr. Jaspal Singh Malhotra and on the milk dairy. During his cross-examination, he was confronted with his statement Ex.PJ wherein he had not stated that the bulb which was on was affixed on the milk dairy. Apparently, it was not an improvement but a clarification about the exact place where the electric bulb was affixed. While referring to scaled site plan Ex.PO, it can be seen that the electric bulb was affixed on the outer wall of the house of Dr. Jaspal Singh Malhotra and the said house adjoined the milk dairy. Therefore, no benefit can be extended to the appellants on the question of slight improvement/clarification given by PW-8 Gurdeep Singh qua the actual place where the bulb was affixed. According to the prosecution, all the accused, including the appellants, were arrested on 21.9.1998. However, before that the police had recovered two empty cartridges of .12 bore from the spot on 12.9.1998. In order to connect the empties recovered from the spot with the weapons which the police took into possession at the time of arrest of the appellants, the police ought to have dispatched the empties forthwith to the Forensic Science Laboratory. However, that did not happen in the present case. The two empties were received in the Forensic Science Laboratory on 29.9.1998, whereas the .12 bore DBBL guns recovered from the appellants were received on 30.9.1998. On analysis, one of the empties matched with the left barrel of the gun recovered from Jagjinder Singh alias Bittu-appellant while the other matched with the right barrel of the gun recovered from Jagwinder Singh alias Jaggi-appellant. Despite the same, the Court is not inclined to extend any benefit to the appellants in view of the cogent and convincing evidence led by the prosecution that it was Jagwinder Singh alias Jaggi appellant, who had fired and injured Ishar Singh, whereas Jagjinder Singh alias Bittu fired from his gun and caused injuries to Gurdeep Singh and Sital Singh. As a result of injuries, Ishar Singh had died while he was being removed to Rajindra Hospital, Patiala. As a result of injuries, Ishar Singh had died while he was being removed to Rajindra Hospital, Patiala. Gurdeep Singh, the injured witness was examined by the prosecution as PW-8, who had explained the minute details in which the occurrence had taken place. Within one and half hours of the occurrence, Gurdeep Singh was medico-legally examined by PW-1 Dr. Beant Singh, who found as many as 12 injuries on his person. All the injuries were the result of firing from .12 bore DBBL gun. The other injured, namely, Sital Singh was also medico-legally examined on 11.9.1998 at 9.45 p.m.. He was also found to be having 4 pellets injuries. For the injuries received by PW-8 Gurdeep Singh, he was subjected to x-ray examination by PW-3 Dr. Baljit Kaur, who deposed that she had found multiple radio opaque shadows in various parts of the body of Gurdeep Singh. After their medico-legal examinations, the hospital authorities telephonically informed Police Station Sadar, Patiala, from where PW- 13 Inspector Ashish Kapoor came to the hospital and after obtaining opinion from the doctor about the fitness of Gurdeep Singh recorded his statement Ex.PJ, which he completed on 12.9.1998 at 1.40 a.m. On the basis of the said statement, FIR Ex.PDD came to be registered at Police Station Sadar, Patiala at 2.15 a.m. and concluded at 3.30 a.m. Within two and half hours, thereafter, special report had reached the hands of Ilaqa Magistrate. The prompt recording of FIR lends independent corroboration to the testimony of PW-8 Gurdeep Singh. (15) THE prosecution could not examine Sital Singh, who had also received injuries in the occurrence, in support of its case. He was given up by the prosecution as having been won over by the accused. Instead, the prosecution examined PW-9 Nirmal Singh, who also deposed about the manner in which the occurrence had taken place. His presence at the spot was mentioned in the statement Ex.PJ made by complainant Gurdeep Singh when he stated that on hearing the alarm, Nirmal Singh and others had reached the spot and witnessed the occurrence. Going back to the scaled site plan Ex.PO, the presence of Nirmal Singh had been shown at point 'E'. He was shown standing at a distance of 7 feet from the complainant party. Mere fact that he was nephew of Ishar Singh-deceased is no ground to discard his testimony. Going back to the scaled site plan Ex.PO, the presence of Nirmal Singh had been shown at point 'E'. He was shown standing at a distance of 7 feet from the complainant party. Mere fact that he was nephew of Ishar Singh-deceased is no ground to discard his testimony. (16) PW-8 Gurdeep Singh had testified that he and Ishar Singh, since deceased had no relationship with each other. None of them had his house near the milk dairy. While the house of PW-8 Gurdeep Singh was in the middle of the village and at a distance of 7/8 killas from the milk dairy, that of Ishar Singh was at a distance of 5/6 killas from the milk dairy. Similarly, the house of Nirmal Singh was at a distance of 4/5 killas from the milk dairy. PW-8 Gurdeep Singh also testified that he was not related to Sarpanch. who had defeated the party man of Balbir Singh accused and none of the accused had any enmity with him or his family prior to the occurrence. Apparently, Ishar Singh, since deceased was the one, who belonged to the party of the winning candidate. Nursing a grudge that their party man Sadhu Singh had lost the election, the appellants had fired at and injured Ishar Singh, Gurdeep Singh and Sital Singh. Later on, Ishar Singh succumbed to his injuries. Mere fact that the police could not recover the firearm licence in the name of Jagwinder Singh alias Jaggi. is no ground to disbelieve the prosecution case. At the time of his arrest on 21.9.1998, Jagwinder Singh alias Jaggi-appellant was carrying one .12 bore DBBL gun with two live cartridges which was taken into possession by the police vide recovery memo Ex.PW. Both PW-8 Gurdeep Singh and PW-9 Nirmal Singh had categorically and consistently deposed that at the time of occurrence, Jagwinder Singh alias Jaggi was armed with .12 bore DBBL gun, which he had used for firing at Ishar Singh, since deceased. (17) WE have gone through the impugned judgment passed by the trial Court. The findings arrived therein are based upon proper appreciation of evidence available on the file. No interference is called for in the same. (18) RESULTANTLY, there is no merit in both the appeals and the same are dismissed. Appeals dismissed.