Prem Singh vs The State

Muni Lal Verma, J.—This judgment will dispose of this appeal as well as Criminal Appeal Nos. 692 of 1970 regarding Jagga Singh v. State of Punjab and 693 of 1970 regarding Bukan Singh v. State of Punjab.

Daulat Singh (since deceased) was brother of Jagga Singh, who is appellant in Criminal Appeal No. 692 of 1970 and Bahal Singh The appellant and Bukan Singh, who it appellant in Criminal Appeal No. 693 of 1970, are sons of Jagga Singh. Shrimati Ram Kaur is the wife of Daulat Singh and Phuman Singh is his son. All of them resided in village-Mahalam, which is about 6 kilometres from Jalalabad. The house occupied by Daulat Singh, his wife Shrimati Ram Kaur and son Phuman Singh, was located In the vicinity of the house wherein the appellant, his brother and their father resided. These houses had a common court-yard. The house of Bahal Singh, was also located near by. In or about the month of April, 1969, some bushels of wheat crop, belonging to some persons, had been stolen and the same were recovered from the house occupied by the appellant, his brother and father-Jagga Singh. The appellant, his brother Bukan Singh and their father-Jagga Singh suspected that the information, which led to the recovery of the said bushels of wheat crop from their house, had been furnished to the owners of the same by Bahal Singh. About 20 days thereafter, Bukan Singh had caused injuries with kirpan to Bahal Singh. Daulat Singh then intervened and had taken Bahal Singh to the hospital but did not allow him to report the matter to the police and further brought about a compromise between them, viz., Bukan Singh and Bahal Singh, because they were closely related to him. According to the said compromise, Bukan Singh had agreed to pay Rs. 200/- to Bahal Singh by way of compensation for the injuries caused to him (Bahal Singh) and he had paid Rs, 50/-, out of the said amount, to him and promised to pay the remaining amount (i.e. Rs. 150/-) on a future date, Daulat Singh had then stood surety for payment of the said amount of Rs. 150/- by Bukan Singh to Bahal Singh.

On 29th May, 1969, at about 5 30 P.M., Daulat Singh, as well as the appellant, his brother Bukan Singh and their father-Jagga Singh were present in the court-yard in front of their respective houses. Shrimati Ram Kaur and Phuman Singh were also present at their house. Daulat Singh asked the appellant his brother (Bukan Singh) and their father (Jagga Singh) to make payment of the remaining amount of Rs. 150/- so that he could pass the same to Bahal Singh. The appellant, his brother and father felt irritated on the said demand, made by Daulat Singh, and this led to exchange of harsh words between them. The appellant, his brother and father went into their house shouting tauntingly to Daulat Singh that they would pay him the amount. They reappeared after arming themselves. The appellant had brought a spear, his brother-Bukan Singh carried a kirpan while Jagga Singh had a kulhari and they set upon Daulat Singh. The appellant opened the attack and hit spear on the chest of Daulat Singh. He wielded two further blows with his spear which landed on the abdomen of Daulat Singh and he (Daulat Singh) fell on the ground, Jagga Singh hit kulhari on his (Daulat Singh''s) chin and Bukan Singh struck kirpan on his right hand Jagga Singh gave further blows from the reverse said of kulhari to Daulat Singh when he was laying on the ground. Shrimati Ram Kaur and Phuman Singh had raised alarm which attracted Bahal Singh and he, too, witnessed the incident. The appellant, his brother and father thereupon retreated into their house carrying their weapons with them. With the help of some persons, Bahal Singh carried Daulat Singh on a cot to Civil Hospital, Jalalabad, where the injuries of Daulat Singh were examined by Dr. Oplnder Singh and he sent information about the arrival of Daulat Singh, in injured condition, to the police station from where Assistant Sub Inspector Chaman Lal went to the civil hospital and Daulat Singh reported the Incident to him. The said report of Daulat Singh was forwarded to Police Station. Jalalabad, where a case under sections 302 and 324, read with section 34, Indian Penal Code, was registered. Daulat Singh succumbed to his injuries at 6.15 A.M. on 30th May, 1969. On receipt of information about his death. Sub Inspector Gurdial Singh went to the civil hospital and held inquest on his (Daulat Singh''s) dead body and sent it to Civil Hospital, Fazilka, for post-mortem examination where Dr Adresh Yakhmi conducted autopsy on it. Sub Inspector Gurdial Singh went to the scene of offence from where he collected blood-soaked earth. He made search for the appellant, his brother and father. They were not found at their house or in the village. They were produced before him on 31st May, 1969, and the appellant suffered disclosure statement that he had kept spear in the field of cotton of Buta Ram and he then led him to the said field of cotton and produced spear (Exhibit P 0/1) which was taken into possession. Sub Inspector Gurdial Singh also recorded the statements of the witnesses and, after necessary investigation, the Police. Jalalabad, prosecuted the appellant along with his brother (Bukan Singh) and father (Jagga Singh) u/s 302, read with section 34, Indian Penal Code, etc and the learned Magistrate committed them to the Court of Session to stand trial for causing the murder of Daulat Singh. The appellant was also prosecuted u/s 25, Arms Act, and the learned Magistrate committed him to the Court of Session separately for standing trial for the offence under sections 25 and 27 Arms Act. Thus is the prosecution case. Both the said cases were consolidated at the time or trial.

The appellant, his brother and father denied the prosecution story. The learned Sessions Judge accepted the prosecution case and convicted the appellant, his brother (Bukan Singh) and father (Jagga Singh) u/s 302, read with section 34, Indian Penal Code, and sentenced them to imprisonment for life each. He also found the appellant guilty of an offence punishable u/s 25, Arms Act, and sentenced him to one year''s rigorous imprisonment with the direction that both the sentences of imprisonment would run concurrently. Aggrieved by his convictions and sentences the appellant has appealed from jail. His brother (Bukan Singh) and his father (Jagga Singh) also preferred separate appeals from jail against their convictions and sentences. Since these three appeals have arisen out of one case, the same are disposed of by one judgment. The evidence was read out to us and we heard the arguments and examined the record.

That Daulat Singh was assaulted at about 5.30 P.M. on 29th May, 1969, in the court yard, which is joint of his house and the house of the appellant, and injuries had been caused to him from the blows of sharp pointed weapon (spear) as well as from sharp edged weapon (Kulhari or kirpan) in village-Mahalam and that he had succumbed to the said injuries especially from the one which had been caused by spear blows, at 6.15 A.M. on 30th May, 1969, in Civil Hospital, Jalalabad, and therefore, the offence committed was murder, are matters about which there can hardly be any doubt or dispute. Shrimati Ram Kaur (P. W. 2), Phuman Singh (P W. 3) and Bahal Singh (P W. 5) were the eye-witnesses. Phuman Singh (P. W. 3) narrated the story which has been summarised above. Bahal Singh (P W. 5) when he made statement (Exhibit P. 14) on 20tb September, 1969, and Shrimati Ram Kaur (P. W. 2) while making statement (Exhibit P. 9) on 22nd September, 1969, in the committing Court, supported the prosecution version in its entirety. Shrimati Ram Kaur also confirmed the prosecution version during examination-in-chief in the trial Court except that she gave kulhari in place of spear to Prem Singh appellant and spear in place of kulhari to Jagga Singh appellant. Bahal Sing, however, turned back to the prosecution at the trial stage and Shrimati Ram Kaur defected during cross-examination and both of them represented that they had not, in fact, witnessed the incident and that the assailants who had indicted injuries to Daulat Singh were not recognised by them. They were duly confronted with the relevant portions of the statements made by them in the committing Court and their statements (Exhibits P. 14 and P. 9) were transferred u/s 288, Criminal Procedure Code, to the record of the trial Court. The said section (section 288 Criminal Procedure Code) provides that the evidence of a witness duly recorded in the presence of the accused, under Chapter XVIII, may, in the discretion of the Presiding Judge, if such witness is produced and examined, be treated as evidence in the case ''for all purposes'', subject to the provisions of the Evidence Act. The words ''all purposes'' appearing in the said section are important and denote that the statement of a witness, recorded by the committing Magistrate, when transferred under the said section, would be treated as evidence without any string. In that view of the matter, such a statement is as much evidence as any other deposition made by a witness in the trial Court. To put it differently, the evidence admitted u/s 288, Criminal Procedure code, stands on the same footing as any other evidence given at the trial, and it does not suffer from any inherent infirmity. If, in the circumstances of a case, it is found that such evidence (i.e. admitted u/s 288, Criminal Procedure Code) is reliable and true, there can be no impediment to act upon it and to record conviction of the accused on its basis. The circumstance, that a witness has made two different statements at two occasions, may require that the evidence, admitted u/s 288, Criminal Procedure Code, should be received with caution. As such, the rule of prudence may, at the most, demand corroboration of such evidence. The said corroborative may evidence not be like substantive evidence because to insist upon that the corroborative evidence should be such as to prove the charge itself against the accused would be rendering the evidence, admitted u/s 288, Criminal Procedure Code, superfluous. It is, therefore, sufficient if the required corroborative evidence lends assurance so as to make it safe to act upon the evidence admitted u/s 288, Criminal Procedure Code The record bears sufficient evidence, to be discussed hereunder, which affords good corroboration to the statement (Exhibit P. 9) of Shrimati Ram Kaur and statement (Exhibit P. 14) of Bahal Singh. Otherwise, too, the evidence and circumstances of the case, when looked at as a whole, point out that the statement made by Shrimati Ram Kaur, during cross-examination, and the statement made by Bahal Singh at the trial, indicating that they did not witness the incident or could not recognise the assailants, were incorrect and appear to have been made with a view to save the appellants who are closely related to them-Jagga Singh being the brother of Bahal Singh and of the husband of Shrimati Ram Kaur and Prem Singh and Bukan Singh being their real nephews, from the consequences of law. It was the evening when the incident had taken place in the courtyard in front of the house of Daulat Singh. Therefore, Shrimati Ram Kaur, being the wife of Daulat Singh and Phuman Singh, being his son, were expected to be present there. Daulat Singh had demanded the money which was to be paid by Bukan Singh to Bahal Singh and this had provoked the appellants who had exchanged hot words with Daulat Singh. It was then that the appellants had gone into their house and reappeared after arming themselves. In that situation, it cannot be gainsaid that Shrimati Ram Kaur, even if it is conceded that she was present inside the house before the incident, must have come outside and Bahal Singh, whose house is located in the vicinity of the house of Daulat Singh, must have been attracted to the scene of incident. Having regard to the time when the incident had taken place and the circumstance that the appellants are close relations of the aforesaid witnesses, it is difficult to accept their assertions that they could not recognise them. Their assertions that the assailants, or some of them, had masked, partly or otherwise, their faces do not. In the circumstances of the case, sound true, and rather appear to have been invented and put forth by them with a view to make their statements doubtful regarding the identity of the appellants, under the pressure of blood relationship and under the zeal to save them. Therefore, we fee that the statement made by Bahal Singh, in the trail Court, and the (sic) made by Shrimati Ram Kaur, during cross-examination, as the trial, smack of favoritism and we decline to rely on the same being false. The statements (Exhibit P 9 and Exhibit P.14), made by them in the committing Court and transferred u/s 288, Criminal Procedure Code, sound true and, as such, the same must be accepted in preference to the statements made by them in the trial Court. The deposition of Phuman Singh was challenged on the ground that he was child, aged about 10 years. No doubt, a child has been said to be a dangerous witness because he can be taught. At the same time, it cannot be forgotten that child finds it difficult to suppress the truth and he is unable to substitute falsehood in its place. Therefore, it cannot be laid as an (sic) rule that in no case the evidence of a child can be acred upon. All that is required is, and the rule, which is of prudence, demands only that the evidence of a child witness should be scanned carefully and of after going so no flaws or Infirmities are found thereto, and it is not shown to be inspired by feeling of enmity against the accused, it can be accepted; and when corroboration of the same is available on on the record it can form basis for recording conviction. As discussed above, the presence of Phuman Singh at the time and scene of incident sounds probable and, as a matter of fact, cannot be doubted He made a positive and clear deposition that when his father Daulat Singh asked the appellant and Bukan Singh to pay the money, which was to be paid to Bahal Singh, the appellant, his brother (Bukan Singh) and the father (Jagga Singh) hurriedly went into their house shouting that they would be paying the amount shortly and that the appellant, who brought spear, had given a blow with in on the chest and two blows with it on (sic) of Daulat Singh as result of which be had fallen and then Jagga Singh hit kulhari on his chin and Bukan Singh gave blows with kirpan to him (Daulat Singh) His (Phuman Singh''s) statement does not suffer from any infirmity which could induce us to disbelieve him. Nothing could be elicited from him during cross examination which could suggest that his aforesaid statement was the outcome on any tutoring The appellant and his brother Bukan Singh (the appellant in Criminal Appeal No 693 of 1970) are his first cousins and Jagga Singh (the appellant in Criminal Appeal No. 692 of 1970) is his Pauman Singh''s) real uncle There had been no had blood between Daulat Singh deceased and Jagga Singh or their families and Phuman Singh had absolutely no motive or cause to make false statement. So the possibility that his statement was inspired by feeling of enmity against the appellant, his (the appellant''s) father and brother, is wholly excluded. We feel that Phuman Singh satisfies the necessary test of judicial scrutiny very well and his statement bears the ring of truth and, as such, the same must be accepted.

It is in evidence from Shrimati Ram Kaur (P.W. 2) and Bahal Singh (P.W 5) that after the incident Daulat Singh was carried on a cot from village-Mahalam to Civil Hospital. Jalalabad, which is about 6 kilometres from that village. Dr Opinder Singh maintained that Daulat Singh and reached the civil hospital at about 9:40 P.M. and he had sent information respecting his arrival, in injured condition, to the police station. Assistant Sub Inspector Chaman Lal stated that he had received the said information at 10.30 P.M. and went to the civil hospital reaching there at about 11 P.M and, after nuking enquiry from Dr. Opinder Singh and satisfying himself that Daulat Singh was in fit state to make statement, he recorded his (Daulat Singh''s) statement (Exhibit P. 16). He concluded the said statement (Exhibit P. 16) at about 12.30 A.M. His deposition that Daulat Singh made statement (Exhibit P.16) to him at that time was not shaken during cross-examination. Dr. Opinder Singh confirmed that Assistant Sub inspector Chaman Lal had reached the civil hospital and made enquiry from him as to whether Daulat Singh was in Sit state to make statement and that he had so certified to him Statement (Exhibit P 16) was sent by Assistant Sub-Inspector Chaman Lal to the police station on the basis of which First Information Report (Exhibit P. 17) was recorded at 12.45 A.M in the aforesaid circumstances, we have no reason to doubt the statement of Assistant Sub-Inspector Chaman Lal and, believing him, we find that Daulat Singh did make statement (Exhibit P. 16) to him within about five hours or so after the incident. Having regard to the distance between Mahalam and Jalalabad, we have no doubt that statement (Exhibit P. 16) was made by Daulat Singh at the earliest to Assistant Sub Inspector Chaman Lal. No question, suggesting that Daulat Singh was prompted to make the aforesaid statement by his wife or brother or by anybody else, was addressed to Assistant Sub-Inspector Chaman Lal during cross examination. No doubt Bahal Singh (P. W, 5) did suggest in the statement made by him in the trial Court that he had told Daulat Singh during the journey, when he (Daulat Singh) was being carried on cot from Mahalam to Jalalabad, that he should name the appellant, Bukan Singh and Jagga Singh as his assailants. But as pointed out above, his statement in the trial Court was false and appears to have been made under the weight of his relationship with the appellant, his brother and father with a view to save them. Therefore, we have no hesitation in ignoring the aforesaid statement, that he had suggested to Daulat Singh, when he was being carried from Mahalam to Jalalabad, that he should came the appellant, Bukan Singh and Jagga Singh as his (Daulat Singh''s) assailants, as false.

Exhibit P. 16 has taken the form of dying declaration, after the death of Daulat Singh, and it has attained the status of substantive evidence. It is said that truth sits on the tongue of a dying man Therefore, when there is absolutely no doubt that the deceased had good opportunity of knowing who the assailant was and could not have been mistaken about his identity, and there is no possible reason for his falsely accusing him as responsible for causing injury or injuries which later proved fatel to him, dying declaration would constitute good evidence and may, by itself, form safe basis for conviction. Undoubtedly, there has been the rule, which is more or pruderce than of law that it is ordinarily unsafe to record conviction on the mere statement of the dead man. The evolution of the said rule is due to the circumstances that it (the dying declaration) cannot be tested by cross-examination of its maker and some time it is not made on oath. Legally, however it cannot be gainsaid that it stands on the same footing as any other evidence. The necessity for its corroboration arises not from any inherent weakness of dying declaration as a piece of evidence, but from the fact that, in a given ca e, the Court may feel that it would not be safe to act upon it unless there is some reliable corroboration of the same. Generally, dying declaration should be taken as a whole, but there seems no bar in law to rely on that portion of dying declaration which is found to be true and is further corroborated by other evidence and circumstances of the case and to reject the rest which is untrue. In the case regarding Kishan Singh Munsha Singh Vs. The State, the question as to whether it is legally permissible to accept and to reject in part a dying declaration was left undecided (vide its paragraph 15). The observation that--

In my opinion a dying declaration stands upon a widely different footing from the testimony of a witness given in the Court. In the ease of the latter it is permissible and at times necessary under certain circumstances to accept a part which is unimpeachable and reject that which is obviously untrue, though to found a criminal conviction on such appraisement of evidence is very often unsafe. As regards a dying declaration, to accept a portion and reject the rest is entirely out of the question; there must be absolute guarantee of the accuracy of the record and the truth of the entire statement before it can be acted upon.

made in the case regarding Emperor Vs. Premananda Dutt, was not accepted as accurate proposition of law in Emperor Vs. Akbarali Karimbhai, and in The Provincial Government. Central Province and Berar v. Jagan Bhat Sitaram AIR 1946 Nag 301. The ratio of these two authorities is that there is no distinction between a dying declaration and other forms of evidence and the Court would judge the weight of dying declaration on exactly the same principles as those upon which it acts in judging the weight of any other type of evidence.

In Criminal Appeal No. 414 of 1957, regarding The State v. Harbans Singh and five others Cri. Appeal No. 414 of 1957, decided on 23rd May, 1958, this Court set aside the acquittal of Harbans Singh and Major Singh and accepted the two dying declarations made by Hazura Singh against them and did not rely on the said dying declarations as against four coaccused of Harbans Singh and Major Singh and the acquittal of the said four persons was maintained. Harbans Singh and Major Singh went in appeal to the Supreme Court after obtaining special leave from there. The dying declarations made by Hazura Singh were considered and the same were not accepted as against Major Singh and his conviction recorded by this Court was set aside, while the conviction and sentence awarded to Harbans Singh u/s 302, Indian Penal Code, were maintained. It is, thus, obvious that dying declarations of Hazura Singh were accepted in part in the aforesaid case. It is, therefore, clear to us that if a part of dying declaration is not acceptable, there is no bar, much less of law, from relying on the other part of it which is found to be true and is further corroborated by other evidence. In other words, when no evidence, other than dying declaration, can be rejected in toto simply because a portion of it is untrue, as the maxim of falsus in uno filsus in omnibus has not attained the status of rule of law and is not generally applicable in this country, there can be no basis for contending that whole of dying declaration should be disregarded simply because, something in it has been found to be unacceptable. A distinction may however be drawn between a case where some matter contained in a dying declaration is not acceptable as true because of other evidence or circumstances of the case and the second case wherein same matter contained in it (dying declaration) has been found to be a deliberate lie or concoction. In the first case, as already remarked above, that portion of a dying declaration, which is found to be true and corroborated by other evidence, may be safely accepted, whereas in the second case, where a part of dying declaration has been found to be deliberate lie, it would be very rare that the other part of the declaration can be acted upon.

Daulat Singh (deceased) had no enmity and he had no cause of hostility against the appellant, his brother and father. On the other hand, he was closely related to them and, in the circumstances of the case, he would be the last person to implicate them falsely. The incident had taken place at about 5.30 P.M. Therefore, it cannot be said that visibility was poor at that time. It cannot be maintained that Daulat Singh could have suffered from any disability from recognising the appellant, his brother and father as the assailants, especially when they were so closely related to him and had been living in a house located near his house. So, on a careful consideration of the entire evidence and circumstances of the case, we are satisfied that dying declaration (Exhibit P. 16) was made by Daulat Singh voluntarily and is true. The said dying declaration, and statements (Exhibit P. 9 and P. 14) of Shrimati Ram Kaur and Bahal Singh, admitted u/s 288, Criminal Procedure Code, are mutually corroborative of each other Further, the said statements and dying declaration (Exhibit P. 16) receive ample support from the statement of Phuman Singh. So, the aforesaid evidence (i.e., dying declaration Exhibits P. 9 and P. 14 or Shrimati Ram Kaur and Behal Singh respectively and the statement of Phuman Singh), when read as a whole points out unmistakably that all of a sudden, when Daulat Singh demanded money which was to be paid to Bahal Singh by Bukan Singh, the appellant, his father (Jugga Singh) and may be Bukan Singh as well, sat upon Daulat Singh and the appellant gave three blows with spear hitting on his chest and abdomen and Jagga Singh hit kulhari on his chin and further gave blows from its reverse side to him.

Dr. Opinder Singh (P.W. 1) who examined Daulat Singh at 10 P.M. on 29th May, 1969, and lady Dr. Adresh Yakhmi (P.W. 4), who conducted autopsy on the dead body of Daulat Singh at 5 P.M. on 30th May, 1969, testified that he had one incised-cum-punctured wound on his chest and two incised-cum-punctured wounds on his abdomen, an incised wound on his chin and three incised wounds on the thumb, index and middle fingers of left hand and four abrasions on the ring and on the back of the left forearm and left knee Lady Dr. Adresh Yakhmi added that Daulat Singh had died due to shock and haemorrhage resulting from the injuries and that the three incised-cum-punctured wounds found on his chest and abdomen were sufficient in ordinary course of nature to cause his death. Therefore, the medical evidence reads consistent with the dying declaration (Exhibit P. 16), stetements (Exhibits P. 9 and P. 14) of Shrimati Ram Kaur and Bahal Singh, and the statement of Phuman Singh, that the appellant had given three blows from spear hitting on a chest and abdomen of Daulat Singh and Jagga Singh struck kulhari on his (Daulat Singh''s) chin and had further delivered blows with it to him alter his fall and as such renders necessary assurance to the prosecution case in that respect.

The incised cum-punctured wounds, inflicted by the appellant with spear, which is highly lethal weapon, on the onest and abdomen, which are vital parts of human body, unmistakably demonstrated his intention to cause the death of Daulat Singh. Since the whole affair was sudden, it appears that the appellant and Jagga Singh, may be with Bukan Singh as well, had taken simultaneous decision to cause injuries to Daulat Singh But ''common intention'' cannot be equated with similar or same intention''. Therefore, in the circumstances of the case, it would be neither reasonable nor proper to infer that the appellant his father (Jagga Singh) and brother (Bukan Singh) were animated by the common intention to kill Daulat Singh. As such, we are unable to agree with the trial Court that section 34, Indian Penal Code, can be applicable to the facts of the case.

The case of Bukan Singh is slightly different from the case of the appellant and Jagga Singh. Where, as indicated above, the part assigned to the appellant in giving three blows with spear on the chest and abdomen, and part attributed to Jagga Singh in hitting kulhari on the chin and delivering further blows with it from its reverse side, to Daulat Singh, are confirmed by the medical evidence, the part assigned to Bukan Singh in giving a blow with kirpan on his (Daulat Singh''s) right hand is not supported by it (the medical evidence). Dr. Opinder Singh and Lady Dr Adresh Yakhmi did find incised wounds on the thumb, index and middle fingers of left hand but they did not find any such injury on the right hand of Daulat Singh. It is pertinent to note that in dying declaration (Exhibit P. 16) Daulat Singh had attributed only one injury to Bukan Singh by stating that he had hit kirpan on his right hand. But the doctors did not find any injury which could be the result of kirpan on his (Daulat Singh''s) right hand. The eyewitnesses (i.e. Shrimati Ram Kaur and Bahal Singh), during commitment proceedings, and Phuman Singh, at the trial, appear to have stated that Bukan Singh had given two blows with kirpan i.e., one on the right and the second on the left hand, of Daulat Singh. About 20 days before the incident, Bukan Singh had caused injuries with kirpan to Bahal Singh. Therefore, the possibility, that he was present at the time and scene of incident and also joined with the appellant and Jagga Singh in exchanging hot words with Daulat Singh but might have not caused any injury with kirpan to Daulat Singh, cannot be excluded. Therefore, we have take a decision to grant benefit of doubt to him, not because the part assigned to him In dying declaration (Exhibit P. 16). or in statements (Exhibits P. 9 and P. 14) as well as in the statement of Phuman Singh, is a lie, but by way of aoundant caution with a view to avoid risk of convicting an innocent person with the guilty. We add that, in view of the discussion in paragraph 4 above, the circumstance, that we have doubted the participation of Bukan Singh and that, too by way of abundant caution, does not impair the weight or value of the prosecution evidence as against the appellant and Jagga Singh. Since the evidence, including the medical, is consistent that Jagga Singh had hit kulhari on the chin and had given further blows from its reverse side to Daulat Singh and section 34, Indian Penal Code, does not apply, the offence proved against him (Jagga Singh); does not go beyond the scope of section 324, Indian Penal Code. In the result, we find that the appellant and Jagga Singh had decided to give beating to Daulat Singh and, in the course of the attack, the appellant had intended to cause his death. So, the offence of murder is conclusively proved against him while Jagga Singh can be held guilty for an offence u/s 324, Indian Penal Code.

Sub-Inspector Gurdial Singh (P. W. 7) and Bahal Singh (P. W. 5) have sworn that on 31st May, 1969, the appellant suffered disclosure statement that he had kept spear in the field of cotton of Buta Ram and then he produced spear (Exhibit P O/1) from the aforesaid field of cotton in consequence thereof The said statement of Sub Inspector Gurdial Singh was not challenged during cross-examination and the conviction of the appellant u/s 25, Arms Act, was not challenged seriously before us. Tnerefore, we feel that there is no reason to doubt the aforesaid statement of Sub-Inspector Gurdial Singh and the conviction of the appellant u/s 25, Arms Act, is sustainable.

Consequently, we maintain the convictions and sentences of the appellant, recorded by the trial Court, and dismiss this appeal.