Sukhdev Singh vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgment/order dated November 16, 1994, passed by the Additional Sessions Judge, Amritsar, whereby Sukhdev Singh appellant has been convicted under Section 302, I.P.C. whereas Ajit Singh appellant has been convicted under Section 302/34, I.P.C. Each of the two appellants has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/ or in default of payment of fine to further undergo rigorous imprisonment for 3 months.

The facts necessary for the disposal of this appeal, which can be gathered from the record of the trial Court, are that Mangal Singh, father of the appellants, was shot dead on 29.5.1989 at 1.40 a.m. inside his house by four Sikh youths and the appellant Sukhdev Singh had also received gunshot injuries in that incident. The appellants and their family members suspected that either Jarnail Singh (son of the deceased Pritam Singh) himself committed this murder or got Mangal Singh liquidated through the agency of someone else. Said Jarnail Singh was arrested and tried, but was acquitted on June 8, 1992. The appellants were not satisfied with this Court acquittal and a lingering doubt still remained in their mind regarding the involvement of Jarnail Singh in the commission of the murder of their father Mangal Singh. Apprehending some danger, Jarnail Singh and his father Pritam Singh (deceased) started making effort for reapproachement with the appellants. In the sequence of such efforts, Mohan Singh (PW2), the then Sarpanch of village Butari was sent, who had discussion with the appellant about 8 days before the occurrence in question. The appellants are stated to have made an offer that if Jarnail Singh and Pritam Singh would come and swear by God regarding the innocence of Jarnail Singh, they would feel satisfied.

In response to the said offer, on October 11, 1992, Pritam Singh (deceased) along with his elder brother Ajit Singh (PW1), Mohan Singh Sarpanch (PW2), Harbans Singh, ExSarpanch, and Balbir Singh, all residents of village Butari went to the behak (residential house) of the appellants in village Wadala Kalan. When they were about 20 Karams away from the gate of the Behak, Pritam Singh (deceased) expressed loudly about their arrival and enquired that if the appellants had called their village Panchayat. At this, appellant Sukhdev Singh armed with a DBBL .12 bone gun (Exhibit P.1/A) and appellant Ajit Singh armed with a .303 rifle (Exhibit P.2) came out of their Behak and started abusing Pritam Singh deceased and his companions. The appellants further threatened them to go back, otherwise they would be killed. Hardly, Pritam Singh and his companions had turned back, when appellant Sukhdev Singh fired from his DBBL .12 gun hitting Pritam Singh below his left ear. On receipt of gunshot injury Pritam Singh fell down and succumbed to the injury. The appellant Ajit Singh fired from his .303 bore rifle but they laid down on the ground and the shots passed over them. Appellant Sukhdev Singh fired another shot which did not hit anyone of them. The appellants, while observing that they had taken the revenge of the murder of their father, made good their escape with their respective weapons.

Ajit Singh (PW1), after leaving Mohan Singh Sarpanch (PW2), Kabal Singh, Balbir Singh and Harbans Singh, ExSarpanch, by the side of the dead body, started for the Police Station to lodge a report. On the way near the hospital of Baba Bakala, he met A.S.I. Jagdev Singh (PW7) and made his statement (Ext. PA). A.S.I. Jagdev Singh made his endorsement (Exhibit PA/1) thereunder, on the basis of which formal first information report (Exhibit PS/2) was recorded at Police Station, Beas. A.S.I. Jagdev Singh (PW7) along with his companions and Ajit Singh (PW1) reached the spot of occurrence. He examined the dead body of Pritam Singh and prepared inquest report (Exhibit PB). The dead body along with the inquest papers was despatched for post mortem. He lifted bloodstained earth from the spot of occurrence and seized the same after converting it into a sealed parcel vice memo Exhibit PC. He also found and lifted two empties of .12 bore (Exhibits P.3 and P.4) and three empties of .303 bore (Exhibits P.5 to P.7) and seized the same after converting the same into two separate sealed parcels vice memo Exhibits PE and PD. He also prepared rough site plan (Exhibit PO) of the sport of occurrence. On the next day, he took into possession the clothes of the deceased brought from the hospital by Constable Satwant Singh and seized the same after converting them into a sealed parcel vice memo Exhibit PO. He made a search for the accused persons but they were not available.

On October 26, 1992, A.S.I. Jagdev Singh arrested both the appellants. On interrogation, the appellant Sukhdev Singh made a disclosure statement (Exhibit PG) and in pursuance thereof got recovered a .12 bore gun (Exhibit P.l/l) which was seized after converting the same into a sealed parcel vide memo Exhibit PK. Appellant Ajit Singh made a disclosure statement (Exhibit PH), in pursuance of which, he got recovered .303 rifle (Exhibit P.2), which was seized after converting the same into a parcel vice memo Exhibit PM. He also took into possession the licence (Exhibit P.1) relating to .12 bore gun from the possession of appellant Ajit Singh. Scaled site plan (Exhibit PT) of the spot of occurrence was got prepared. He took into possession mark ''A'' a copy of the first information report and mark `B'' a copy of Daily Diary entry from Police Station, Beas. The sealed sample parcels were sent to the office of the Chemical & Forensic Experts and the reports Exhibits PX, PY and PZ were received. After completing the investigation, a chargesheet was filed.

A charge under Section 302, I.P.C., was framed against the appellant Sukhdev Singh, whereas a charge under Section 302/34, I.P.C. was framed against appellant Ajit Singh. Both the appellants pleaded not guilty and claimed trial.

In support of its case, the prosecution examined 11 witnesses. Ajit Singh (PW1) is the brother of the deceased, an eyewitness to the occurrence and author of the First Information Report. Sh. Mohan Singh (PW2), Sh. Harbans Singh (PW3), Sh. Kabal Singh (PW4) are the other eyewitnesses to the occurrence. ASI Ramandeep Singh (PW6) remained present throughout in the investigation of this case. S.I. Manjeet Singh (PW8) is the Licence Clerk of the office of the Deputy Commissioner, Amritsar, who has proved that the licence Exhibit P.1 in respect of .12 bore gun stands in the name of Appellant Ajit Singh. LC Manjit Singh (PW10) was posted as Moharrir Malkhana, with whom the case property was deposited by A.S.I. Jagdev Singh and later on he had sent the sealed sample parcels of this case to the office of the Chemical Examiner & Forensic Science Laboratory through Constable Harjeet Singh (PW9) and Constable Gurbhej Singh (PWll). S.I. (then A.S.I.) Jagdev Singh (PW7) is the Investigating Officer. Dr. Gurmanjeet Rai (PW5) had performed autopsy over the dead body of Pritam Singh on 12.10.1992 at about 11.45 a.m. He found the following injuries on the said body :

(1) A lacerated wound 6 cms x 3.5 cms with inverted margins on the left side of the neck, 2 cms below lobule of ear. Clotted blood was present.

(2) A lacerated wound 10 cms. x 9.5 cms on the right side of face with everted margins. Clotted blood was present. On dissection, injury No. 2 after lacerating soft tissue on the left side of the neck. Fracture of mandible on right side, maxilla and right interior cranial fossa of skull on the right side palatine bones and natal bones were found fractured and soft tissue in the oral cavity found lacerated. Membranes and brain and right eye were found lacerated. Clotted blood was present in the tract and in the cranial cavity. Stomach contained 200 cc of semidigested food and rest of organs of abdomen and chest were N.A.O.

He had found that both the injuries were communicating and were sufficient to cause death in the ordinary course of nature. According to his opinion, both the injuries were ante mortem in nature. Time that elapsed between injuries and the death was immediate and that between death and post mortem was 12 to 24 hours. He proved Exhibit PF, copy of the post mortem report prepared by him. He also explained that the dead body along with the police papers consisting of statement Exhibit PA, copy of the F.I.R. and inquest papers were received on 12.10.1992 at 11.30 a.m. through Constable Sukhwant Singh and Constable Varinder Pal. The prosecution tendered in evidence Exhibits PA, PY and PZ, the reports of the Chemical Examiner, Serologist and Forensic Science Laboratory.

In their examination, under section 313 of the Code of Criminal Procedure, both the appellants pleaded innocence and false implication. According to them, they were kept in illegal custody for many days, gun and the rifle were taken from their house, false recovery was shown much later on and they were implicated falsely in this case. They did not produce any evidence in their defence.

On an appraisal of the evidence produced on the record, the trial court found both the appellants to be guilty under Section 302, I.P.C., and under Section 302/34, I.P.C., respectively, convicted and sentenced them as stated above. Hence this appeal.

Jarnail Singh, son of the deceased, has filed Criminal Revision No. 239 of 1995 against the appellants for enhancement of the sentence and for awarding reasonable compensation.

We have heard the learned counsel for the parties and have gone through the record of the trial court with their active help.

Sh. R.S. Cheema, Sr. Advocate, learned counsel for the appellants, while assailing the order of conviction, has raised the usual contention that the first information report in this case was not recorded at the purported time and the same was manipulated later on and a story was fabricated falsely implicating the appellants therein. It has been pointed out that according to the prosecution the occurrence took place at 4.00 p.m. but the first information report was recorded at 6.15 p.m. at Police Station, Beas, and the special report was delivered to the concerned Judicial Magistrate on 12.10.1992 at 7.10 a.m. and that the prosecution has not given any reasonable explanation for this delay.

After perusing the record, we do not agree with the learned counsel for the appellants. The occurrence took place on October 11, 1992 at 4.00 p.m. outside the village Wadala Kalan in front of the Behak of the appellants. While leaving Mohan Singh, Sarpanch, and others to guard the dead body, Ajit Singh left for the Police Station on foot to lodge a report. On his way, he met the police party headed by A.S.I. Jagdev Singh (PW7) near Civil Hospital, Baba Bakala, where the statement Exhibit PA made by Ajit Singh was recorded by Jagdev Singh at 5.35 p.m., on the basis of which formal FIR was recorded at Police Station, Beas, on that very day at 6.15 p.m. It is correct that the special report was delivered to the Judicial Magistrate at Amritsar on 12.10.1995 at 7.10 a.m. It is not disputed that the distance between Police Station, Beas, and Amritsar is about 42 Kms. A.S.I. Jagdev Singh (PW7) has explained that due to disturbed conditions in the State in those days, there was no night service and as such the special report was delivered to the Judicial Magistrate on the next day at 7.10 a.m. He has shown his ignorance as to whether any train was available for Amritsar during night in those days. There is no other evidence on the record to prove that there was any mode of conveyance available in those days during night to enable the police official to deliver the special report to the Judicial Magistrate at Amritsar during night itself. The deposition of A.S.I. Jagdev Singh that no night service during those days was available from Beas to Amritsar due to disturbed conditions in the State, rings true and there is no reason, whatsoever, to doubt the same. In other words, the delay caused in delivering the special report to the Magistrate was not deliberate or for any oblique motive on the part of the police but was due to the aforesaid reasons beyond the control of the police.

The matter may be looked from another angle. The first information report Exhibit PA/2 contains the prosecution version in a concise form. During the trial, it has come on the record from the mouth of the eyewitnesses that appellant Sukhdev Singh fired from his .12 bore gun which hit Pritam Singh deceased below his left ear which proved fatal, and that this appellant had fired one more shot from the same gun which could not hit any one. Similarly, it has come on the record that the appellant Ajit Singh had fired 3 shots from his .303 rifle but the same could not hit any one of the complainant party since they had laid down on the ground and the shots passed over them. If the first information report (Exhibit PA/2) had been inquest oriented or had been recorded later on next day in the morning, it was quite easy for the police or the complainant party to introduce these facts as well therein. The omission of these details, in itself, is a guarantee to hold that the first information report was lodged promptly, without any delay and the same was not the result of any delay and the same was not the result of any deliberation or consultation by the police with the complainant party.

The learned counsel for the police has further argued that the occurrence is stated to have taken place at 4.00 p.m. in the area of village Wadala Kalan, shots were fired from .12 bore gun and .303 rifle, the residents of village Wadala Kalan must have been attracted to the scene of occurrence but no independent witness has been examined, during investigation, cited or examined at the trial. It has been urged by the learned counsel that only interested witnesses have been cited, produced and examined at the trial whose testimony cannot be said to be enough to prove a heinous offence of murder against the appellants. Again we find little merit in this contention. As already stated, Pritam Singh (deceased) along with Ajit Singh (his real elder brother), Mohan Singh Sarpanch, Harbans Singh, ExSarpanch, Kabal Singh and Balbir Singh, all residents of village Butari, had gone to village Wadala Kalan to remove the misgivings of the appellants on a prior appointment. The behak of the appellants is situated outside village Wadala Kalan. The entire occurrence took place within few minutes. In these circumstances, the persons present on the spot could be either Pritam Singh deceased and his companions of village Butari and the two appellants. If certain persons from village Wadala Kalan had reached the scene of occurrence on hearing fire shots, they cannot be said to be eyewitnesses at all. Mohan Singh (PW2) cannot be said to be an interested or partisan witness. Although he is a covillager of the deceased, yet it was he who was negotiating between the complainant party and the appellants to remove the misgivings. He was an independent eyewitness, having no oblique motive to favour the complainant party or to implicate the appellants in a false case. Similarly, Harbans Singh, ExSarpanch (PW3) and Kabal Singh (PW4) although tendered for crossexamination, cannot be said to be interested or partisan witnesses in any manner. It may also be stated that there is no law which says that in the absence of any independent witnesses, the evidence of interested or partisan witness, should be thrown out or should not be relied upon for convicting an accused. What the law requires is that where the witnesses are interested or partisan, the Court should approach their evidence with care and caution. Where the presence of such a witness at the scene of occurrence is proved or made probable, his testimony cannot be discarded merely on the ground that he is not an independent witness. The most important fact to be kept in mind while appreciating the oral evidence in this case is that the complainant party belongs to village Butari and the occurrence took place in village Wadala Kalan, where the appellants reside. Therefore, it was really impossible to find independent witness from village Wadala Kalan to come forward and to give evidence. None of the residents of village Wadala Kalan would dare to stand as a prosecution witness against the appellants. The presence of Ajit Singh (PW1) and Mohan Singh (PW2) at the scene of occurrence has been established beyond doubt. The substratum of the story narrated by them is consistent with the other evidence on the record and the surrounding circumstances as disclosed in the prosecution version. Therefore, the plea that no independent witness from village Wadala Kalan was cited and examined at the trial and conviction of the appellants cannot be sustained merely on the testimony of Ajit Singh (PW1) and Mohan Singh (PW2), is without any merit and is hereby rejected.

Then the learned counsel for the appellants has contended that there are several inconsistencies and improvements in the testimony of Ajit Singh (PW1) and Mohan Singh (PW2). It has been pointed out that according to the first information report, the complainant party used to collect respectable persons of the village to remove the misgivings from the mind of appellant Sukhdev Singh and his family members, whereas according to the testimony of Ajit Singh (PW1) certain Panchayat had taken place for this purpose which he had not attended, though 8 days prior to the occurrence Mohan Singh Sarpanch (PW2) had gone to the appellants with the same object, and according to him no Panchayat had been taken to Wadala Kalan and he alone had gone to the appellants for the said purpose.

It has been further pointed out that according to Ajit Singh (PW1), Jarnail singh was involved only in one case in respect of the commission of murder of the father of the appellants, whereas according to Mohan Singh (PW2), he was involved in two cases. It has also been pointed out that according to Mohan Singh (PW2), the police immediately on its arrival detected the empties and took the same in possession after converting them into separate sealed parcels and thereafter writing work was done, but according to A.S.I. Jagdev Singh (PW7), immediately after reaching the scene of occurrence, he had prepared the inquest report and only thereafter he had lifted the empties and converted the same into separate sealed parcels and took into possession by preparing seizure memos. All these discrepancies are trivial in nature and do not shake the basic version of the prosecution case. These are due to normal errors of perception or memory and no undue importance can be attached to them. Such like discrepancies always occur even in the testimony of truthful witnesses. Therefore, this plea also does not help the appellants in any manner nor reflects any doubt upon the prosecution case.

The learned counsel for the appellants has vehemently argued that in the first information repot based on the statement of Ajit Singh (PW1), it is mentioned that Sukhdev Singh appellant had fired from his DBBL .12 gun which hit Pritam Singh below his left ear, and that when they were raising hue and cry, Ajit singh fired from his .303 rifle towards them with the intention to kill but on raising an alarm by them both the appellants ran away from the spot with their respective weapons, whereas Ajit Singh (PW1) and Mohan Singh (PW2), during their examination on oath have stated that Sukhdev Singh appellant had fired twice from his DBBL .12 gun and the appellant Ajit Singh had fired three shots from his .303 rifle but they laid down on the ground and the shots passed over them. Thus, it has been argued by the learned counsel that this is a serious improvement made by these two eyewitnesses at the trial only just to coincide with the prosecution case that from the scene of occurrence two empties of .12 bore gun and 3 empties of .303 bore rifle were recovered, due to which no reliance can be placed upon their testimony.

We have carefully examined the prosecution version as contained in the first information report, the testimony of both the eyewitnesses including their crossexamination where they have been confronted with the first information report as well as their earlier statement recorded under Section 161 of the Code of Criminal Procedure or during inquest proceedings. It may be stated that a first information report is not the ''be all and end all'' of a case. It is not intended to be a very detailed document but is meant to give only the substance of the allegations. In the case in hand, the occurrence took place at about 4.00 p.m. and the statementExhibit PA was made by Ajit Singh at 5.35 p.m. It is specifically mentioned therein that Sukhdev Singh appellant fired from his DBBL .12 bore gun hitting Pritam Singh below his left ear and on receipt of the gun shot he fell down on the spot and breathed his last. It has been further stated by him that when they were raising hue and cry, Ajit Singh appellant fired from his .303 rifle towards them with the intention to kill them. It has been mentioned that on their raising alarm, the appellants ran away from the spot with their respective weapons. In other words, Ajit Singh (PW1) got recorded the substance of the entire incident in a concise form. It is correct that it has not been mentioned in the first information report that Sukhdev Singh appellant had fired twice and Ajit Singh appellant had fired thrice. It is also not mentioned that they laid down on the ground and the shots fired by Ajit Singh passed over them. But these facts are the minute details of the main outlines of the occurrence contained in the first information report, and would not affect the credibility of these witnesses. It may be pointed out that immediately after the occurrence, Ajit Singh and his companions found Pritam Singh to have breathed his last on the spot. Leaving his companions by the side of the dead body, Ajit Singh set out for the Police Station to lodge a report. After covering a distance of about 41/2 KMs, he met the police party and made his statement. In these circumstances, it was not expected from Ajit Singh to give the number of shots fired by the two appellants at the time of occurrence, particularly, when only one shot fired by Sukhdev Singh had hit the deceased and proved fatal. Therefore, this so called improvement stated to have been made by these two eyewitnesses during the course of examination at the trial neither creates any doubt regarding the presence of these two witnesses at the time of occurrence nor casts ally doubt on their credibility.

Next contention raised by the learned counsel for the appellants relates to the delay caused by the investigating agency in sending the sealed parcels containing the recovered empties from the scene of occurrence and the .12 bore gun and .303 bore rifle recovered from the possession of the appellants to the office of Forensic Science Laboratory. Admittedly, two empties (Exhibits P.3 and P.4) of .12 bore gun and 3 empties (Exhibits P.5 to P.7) of .303 bore rifle were lifted from the spot of occurrence on 11.10.1992 i.e. the day of occurrence and the same were converted into two separate parcels with the seal of ''JS'' and the seal after use was handed over to Mohan Singh (PW2). According to the prosecution case, both the appellants were arrested on 26.10.1992. It was on that day that in pursuance of the disclosure statements made by the appellants, .12 bore gun (Exhibit P.1/A) and .303 bore rifle (Exhibit Pp.2) were recovered. LC Manjeet Singh (PW10) was posted as Moharrir Constable with whom the case property was deposited. He has tendered his affidavits Exhibits PW10/A and PW10/B in evidence. He was not cross examined by the defence at all. From a perusal of the affidavitExhibit PW10/A, it is evident that the two sealed parcels containing the aforesaid empties were handed over by him with the seal of ''JS'' intact along with the docket and the sample seal on 19.10.1992 to Constable Gurbhej Singh (PWll), for depositing in the office of the Forensic Science Laboratory at Chandigarh. Since the docket was found to be defective, both the sealed paroles were received back and redeposited in the Malkhana on 20.10.1992. The docket was corrected and both the sealed parcels were again handed over to the same constable on 22.10.1992 who deposited the same in the office of the Forensic Science Laboratory at Chandigarh on 23.10.1992 and the receipt thereof was handed over by Constable Gurbhej Singh CPW11) to LC Manjeet Singh on 24.10.1992. The affidavitExhibit PW10/B goes to show that he DBBL .12 bore gun and the rifle .303 bore, duly sealed with the seal of `JS'' in separate parcels, which were deposited with him on 26.10.1992 by A.S.I. Jagdev Singh, were handed over by him on 24.11.1992 to Constable Gurbhej Singh (PW11) and Constable Harjit Singh (PW9) for depositing in the office of Forensic Science Laboratory, Chandigarh that they deposited these parcels in the said office on the same day and handed over the receipts to him on 25.11.1992. AffidavitExhibit PU sworn by Constable Harjit Singh (PW9) who was also not crossexamined, reveals that on 24.11.1992 he along with Constable Gurbhej Singh had taken two sealed parcels containing .12 bore gun and .303 bore rifle from the Malkhana and had deposited the same in the office of the Forensic Science Laboratory on that very day. Thus, the empties recovered on 11.10.1992 were received in the office of Forensic Science Laboratory, Chandigarh, on 23.10.1992, and the gun and the rifle recovered on 26.10.1992 were received in the office of the Forensic Science Laboratory, Chandigarh, on 24.11.1992.

On the above facts, it has been argued by the learned counsel for the appellants that this inordinate delay in sending the empty cartridges and the firearms to the office of the Forensic Science Laboratory is fatal to the prosecution case. In support of this plea, reliance has been placed upon three decisions of the apex Court rendered in Chhotelal Singh v. State of Madhya Pradesh, AIR 1978 SC 1390, Harchan Singh and others v. State of Punjab, AIR 1981 Supreme Court 925, and Baldev Singh v. State of Punjab, 1991 SC Cases (Crl) 61. We have carefully perused these decisions, and are of the view that the appellants cannot derive any help therefrom. In Chhotelal Singh''s case (supra), the appellant was tried and convicted under Sections 397/412, I.P.C. Since none of the prosecution witnesses was able to identify the appellant at the test identification parade and there was no legal evidence to connect the appellant with the actual participation in the dacoity, the appellant was acquitted of the charge under Section 397 I.P.C. In that context, their Lordships had observed as under :

"It is true that empty cartridges were found near the place of occurrence which are said to have been fired from the licensed gun of the appellant, but that by itself is not conclusive because there has been a delay of as many as six days after the occurrence in the recovery of the cartridges. Moreover the possibility of the cartridges having been used by someone else by borrowing the gun of the appellant cannot be reasonably excluded."

These observations go to show that the cartridges were recovered 6 days after the occurrence and the possibility of cartridges having been used by someone else by borrowing the gun of that appellant could not be reasonably excluded.

In Harchand Singh''s case (supra), no question of any delay in sending the recovered cartridges and firearm to the Forensic Science Laboratory was involved. On the other hand, their Lordships came to the conclusion that there was considerable doubt if the appellant to whom the fire shots were attributed, was present at the scene of occurrence at all.

In Baldev Singh''s case (supra), which was based on circumstantial evidence, the apex Court believed the oral as well as written dying declarations and the peculiar version given by the sole prosecution witness. In that context, the additional factor that the pistol and the fire cartridges seized on January 15, 1975 but sent to the Forensic Science Laboratory on January 27, 1975, was held to have created a doubt not solely on the basis of the delay in sending the cartridges and the firearm to the Forensic Science Laboratory but on the basis of all the above findings arrived at by their Lordships. The following observations would make the point clear :

"All these circumstances created doubt about the connection of this cartridge Ex. C.1 with the crime."

In the case in hand, the empties (Exhibits P.3 and P.4) of .12 bore gun and Exhibits P.5 to P.7 of .303 bore rifle were recovered and seized from the spot on the day of occurrence itself. These were seized after converting the same into separate sealed parcels with the seal of ''JS'' and the seal after use was handed over to Mohan Singh (PW2). These sealed parcels were deposited in the office of the Forensic Science Laboratory, Punjab, at Chandigarh, on 23.10.1992. The .12 bore gun (Exhibit P.1/A) and .303 bore rifle (Exhibit P.2) were recovered on 26.10.1992 in pursuance of the disclosure statements made by the appellants and after converting the same into sealed parcels, these were deposited in the malkhana. In other words, when these firearms (Exhibits P.1/A and P.2) were recovered, the empty cartridges found and recovered from the scene of occurrence had already been deposited in the office of the Forensic Science Laboratory. Therefore, no oblique motive can be attributed to the investigating agency for the delay which occurred in sending the sealed sample parcels containing the empties and later on the sealed sample parcels containing the two firearms. Any defect or irregularity during investigation, unless deliberate and for some ulterior motive, is immaterial and would not cause any dent in the prosecution case.

In support of his aforesaid plea, the learned counsel has also made a reference to the testimony of Constable Gurbhej Singh (PW11). According to this witness, MHC Manjit Singh handed over to him two sealed parcels containing .12 bore gun and .303 calibre rifle on 19.10.1992 and another sealed parcel containing empty cartridges along with a docket for depositing the same in the office of the Forensic Science Laboratory, Chandigarh, that the parcels were not accepted by the office and were returned with some objections and he redeposited the same on the same day with MHC Manjit Singh. He changed his version and stated that MHC Manjit Singh had handed over the aforesaid parcels to him on 10.10.1992 and these parcels were again handed over to him on 19.10.1992 and he had deposited the same in the office of the Forensic Science Laboratory with seals intact. He was allowed to be cross examined by the prosecution. He has admitted that firstly he had gone to the office of the Forensic Science Laboratory on 19.10.1992 and the parcels could not be deposited but he deposited the same on 24.11.1992. In his cross examination by the defence, he stated that the sample impression seals were not tallying with the seals mentioned in the docket. On the basis of this testimony, it has been urged that it is highly doubtful as to on which date these parcels were handed over to Constable Gurbhej Singh (PW11) and were deposited in the office of the Forensic Science Laboratory.

If the statement of Constable Gurbhej Singh (PW11) is read in the light of the testimony of Constable Harjit Singh (PW9) and LC Manjit Singh (PW10), (by way of their affidavits Exhibits PU, PW10/A and PW10/B and the report Exhibit PZ received from the office of the Forensic Science Laboratory, it would be crystal clear that this witness has been won over by the appellants and by contradicting himself, he tried to create doubt in the prosecution story to help the appellants. Exhibit PZ goes to show beyond any doubt that the first two parcels containing empties were received with seals intact on 23.10.1992 and the remaining two parcels containing .12 bore DBBL gun and .303 calibre rifle were received on 24.11.1992 with seals intact. This fact is duly corroborated by the testimony of Constable Harjit Singh (PW9) (affidavit Exhibit PU) and LC Manjit Singh (PW10) (i.e. the affidavit Exhibits PW10/A and PW10/B), already discussed above. Therefore, no evidentiary value can be attached to the testimony of Constable Gurbhej Singh and the same required to be discarded in toto.

It has also been argued by the learned counsel that the appellants were already in the custody of the police and they have been falsely shown to have been arrested on 26.10.1992. It has been further contended that the licensed .12 bore DBBL gun and .303 calibre rifle were collected by the police from the house of appellants and were shown to have been recovered in pursuance of their alleged disclosure statements. We find little merit in this plea. A.S.I. Jagdev Singh (PW7) has categorically stated that he had searched for the appellants but they were not available and that they could be arrested only on 26.10.1992. Ajit Singh (PW1) and Mohan Singh (PW2) have also deposed that after the occurrence both the appellants while observing that they had taken the revenge for the murder of their father, had made good their escape with their respective weapons. It has nowhere been suggested either to these two witnesses or to A.S.I. Jagdev Singh (PW7) in their crossexamination as to on which date and since when these appellants were in the custody of the police or as to on which date they were apprehended by the police. Even in their examination under Section 313 of the Code of Criminal Procedure, the appellants have not specified as to since when they were in the custody of the police and as to when the police had collected the firearms from their house. The appellants have stated that they were kept in illegal custody for many days and then implicated in this case, and that the gun and the rifle were taken from their house and false recovery was shown later on. This reply is quite vague and indefinite. We may not be understood having used the statements of these appellants recorded under Section 313 of the Code of Criminal Procedure as substantial piece of evidence. It is only to analyse and examine the testimony of A.S.I. Jagdev Singh (PW7) regarding the arrest of the appellants that their statements have been referred to. There is no other material on the record to show that these appellants were in police custody prior to 26.10.1992 or that the DBBL gun (Exhibit P1/A) and the rifle (Exhibit P.2) were collected by the police from their house on any earlier day. Finding no force in this contention, the same is hereby rejected.

Then the learned counsel for the appellants has argued that no common intention on the part of the appellants can be inferred from the facts and circumstances proved on the record, nor any charge under Section 307, I.P.C., was framed against the appellants and, therefore, the conviction of Ajit Singh appellant is not sustainable. We do not find any force even in this plea. From the testimony of Ajit Singh (PW1) and Mohan Singh (PW2), it is established that Jarnail Singh son of Pritam Singh deceased was being suspected by the appellants to be responsible for the murder of their father. Admittedly, Jarnail Singh was tried and acquitted for the said murder. Being apprehensive of any violent attack, he along with his father (deceased) made efforts for rapproachement to remove the misgivings from the mind of the appellants. According to the testimony of Mohan Singh (PW2), it is established that the appellants desired that Jarnail Singh and his father Pritam Singh should come and swear by God regarding the noninvolvement of Jarnail Singh in that occurrence. The date and time for the same were agreed upon. It was on the date and time fixed that Pritam Singh (deceased) along with his elder brother Mohan Singh and other companions reached the behak of the appellants. Pritam Singh appeared to be wise enough not to take Jarnail Singh along with him. It is further established that when Pritam Singh loudly informed about their arrival, Sukhdev Singh appellant armed with .12 DBBL gun (Exhibit P.1/A) and Ajit Singh appellant armed with .303 calibre rifle (Exhibit P.2) came out of their behak. On seeking Pritam Singh and others, the appellants started hurling abuses at them and asked them to go back. Hardly Pritam Singh and his companions had turned back that Sukhdev Singh fired a short from his .12 bore DBBL gun (Exhibit P.1/A) which hit Pritam Singh under his left ear, which proved fatal. Ajit Singh appellant also fired thrice from his .303 calibre rifle but none of the shots hit anybody since they laid down on the ground and the shots passed over them. All these duly established facts read with conduct of the two appellants in coming out of their behak duly armed and then firing at Pritam Singh and his companions conclusively prove that they had come out with a prearranged plan to commit murder of Pritam Singh and Jarnail Singh as they were expecting both of them on the spot and in pursuance of the said prearranged plan, both the appellants had fired, although the shot fired by appellant Sukhdev Singh had hit Pritam Singh which proved fatal. In these circumstances common intention on the part of both the appellants is established beyond any doubt and Section 34, I.P.C. has been rightly invoked and applied. The fact that no charge under Section 307, I.P.C., has been framed against the appellants or the appellant Ajit Singh is of no consequence when the appellant Sukhdev Singh has been charged under Section 302, IPC, and the appellant Ajit Singh has been charged under Section 302/34, I.P.C.

We have carefully analysed the testimony of the two witnesses i.e. Ajit Singh (PW1) and Mohan Singh (PW2). Their testimony stands duly corroborated by the medical evidence, recovery of the empty cartridges from the scene of occurrence and the report of the Forensic Science Laboratory and the circumstances established on the record. The prosecution has further proved a strong motive on the part of the appellants in committing the murder of Pritam Singh. It was only a good luck for Jarnail Singh that he did not turn up along with his father and others and escaped the brutal attack made by the appellants upon Pritam Singh and others. As already stated, Mohan Singh (PW2) has no animus against the appellants to implicate them falsely nor any reason to help the complainant party. The fact that Mohan Singh (PW2) is a co villager of the deceased is no reason to doubt his credibility.

As a result of the above discussion, we do not find any merit in this appeal and the same is hereby dismissed, thereby upholding the conviction and sentence recorded by the Additional Sessions Judge, Amritsar.

Criminal Revision No. 239 of 1995 has been filed by Jarnail Singh, son of Pritam Singh (deceased), and one Ajit Singh, praying for enhancement of the sentence imposed upon the appellants and for the award of compensation to them being the dependents of the deceased. It may be stated that this is not a case which can fall within the ambit of expression ''rarest of rare case'' . The learned trial Court has imposed proper sentence of life imprisonment and the fine. There is no reason to interfere therewith.

As regards the compensation claimed under Section 357 of the Code of Criminal Procedure, it is enough to say that there is no material on the record to show as to how and to what extent the petitioners were dependent upon the deceased, nor there is any material to assess the compensation as well as the ability of the appellants to pay the same. In these circumstances, the petitioners are left to their ordinary remedy under the common law to seek compensation, if so advised. Accordingly, we dismiss the Criminal Revision also.