JUDGMENT S.K. Kaul, J.
1. This is an appeal by Kaplan Singh, Dularey and Malhey against their conviction and sentence to death under Section 302, I.P.C., so far as Kaptan Singh is concerned, and Section 302/149, I.P.C., so far as Dularey and Malhey are concerned, with the aid of Section 303, I.P.C. Kaptan Singh and Da-larey have also appealed against their conviction and sentence to undergo two years' R. I. each under Section 148, I.P.C. There is also a usual reference in respect of these three accused for confirmation of death sentence by the learned Sessions Judge. Appeals by Sukkha, Ram Dayal, Bisrara, Lankush Shankar and Barey Lalla have also been filed against their sentence and conviction to undergo life imprisonment under Section 302/149, I.P.C. each for murder of Vijai Bahadur Singh and Smt. Beti, Shanker has also appealed against his sentence and conviction to undergo two years' R. I. under Section 148, I.P.C., while remaining accused noted above have come up in appeal against their sentence and conviction to undergo one year's R. I. each under Section 147, I.P.C. Accused Balbir has come up in appeal against his sentence and conviction to life imprisonment under Section 302, I.P.C. for having committed murder of Smt. Beti as well as for sentence and conviction under Section 302/149, I.P.C. for the commission of the murder of Vijai Bahadur Singh. He has also come up in appeal against his sentence and conviction to undergo two years' R. I. under Section 148, I.P.C. The sentences of all these accused on various counts were ordered to run concurrently. All these appeals and the reference as noted above were heard together and these shall be disposed of by one judgment.
2. Accused Kaptan Singh and Balbir Singh are real brothers. They live in one house in village Gauriya. Accused Dularev and Malhey alias Phool Singh are also real brothers and they are uncles of Kaptan Singh and Balbir Singh. Accused Bisram is son of accused Dularey. They also live in this very village. Accused Shanker is mausara bhai of accused Kap-tan Singh and Balbir Singh. Accused Sukkha is sarhu of accused Dularey. Accused Lankush is cousin of accused Sukkha. Accused Ram Dayal is nephew of accused Kaptan Singh. All these accused also reside in village Gauriya, Accused Barey Lalla is a resident of village Gau-hana. Ham Krishna Singh and Vijai Bahadur Singh, who is now dead, were real brothers, and they also resided in one house in this village Gauriya along with their mother. Smt. Beti deceased. The house of Ram Krishna lies to the extreme north of the village. The prosecution story is that there is a long standing enmity between the family of Ram Krishna Singh, on one hand, and the family of Kaptan Singh, on the other, in this way that in the year 1955 Ram Prasad, father of accused Kaptan Singh, was murdered, Vijai Bahadur deceased, his brother Ram Krishna Singh, his uncle Bhuri Singh and four others were implicated in that murder as accused, but were acquitted on trial. After about 2 or 3 months of the aforesaid murder, one Badnu, uncle of Vijai Bahadur deceased, was murdered. Hardeo, who was brother of accused Kaptan Singh and who was also made an accused in this case, but he having died earlier to the trial had escaped sentence and conviction, had been implicated as an accused along with others, but had secured an acquittal. In the year 1958, Bhuri Singh was murdered. In that murder case Kaptan Singh, Hardeo Singh, Dularey, Malhey and others were implicated and they were sentenced to life imprisonment. Their appeal was also dismissed by the High Court. Kaptan Singh, Malhey and Dularey were released in 1967 on probation. In the year 1970 Ranbir, another torother of Kaptan Singh, was murdered and in that murder case Vijai Bahadur deceased along with Ram Krishna Singh and others were implicated. That case was said to be still pending when this occurrence took place. It may be noted here that later on, that case ended in acquittal. Apart from these murders of one or the other of the members of either family there were two cases fought out in between these families under Sections 107/117, Cr. P.C. in which one party consisted of accused Kaptan Singh, Hardeo deceased and others, while the other party consisted of deceased Vijai Bahadur and others, it was further alleged that 5 or 6 days before this incident, Ram Krishna Singh had helped police in an encounter that took place between the police, on one hand, and the gang of Gulshera and Shamshera, on the other, in which Babu, brother of Gulshera and Shamshera, along with two others was apprehended. This incident is said to have closely brought together the gang of Gulshera and Shamshera and the group of Kaptan Singh which group was already friendly with this gang of Gulshera and Shamshera.
3. The prosecution story now reads in this way that on 23-3-1973, at about 9 A.M., Ram Krishna Singh was going towards his well, which was situate in front of his house, with the object of taking bath. At that very time, his brother Vijai Bahadur deceased was engaged in giving fodder to his cattle which were tied at the charni which was also situate in front of his house under a Neem tree. At that very occasion, Ram Krishna Singh saw a group of 14 persons, which included Gulshera, Girish and Kaptan Singh, armed with rifles, Balbir, Dularey, Shanker and Shamshera, armed with guns, Hardeo, armed with a spear, Sukkha, Ram Dayal, Bisram, Malhey, Lankush and Barey Lalla, armed with lathis, approaching from the northern direction. Seeing this group, both these brothers raising an alarm started running towards their house. They reached their barotha where their mother, Smt. Beti, was sitting. These assailants, however, managed to reach the door and when they tried to enter, Smt. Beti attempted to close the door with the result that Balbir accused was said to have shot at Smt. Beti on account of which she fell down dead. In the meantime, both the brothers had come inside their courtyard. In the courtyard were present Smt. Kamla Devi, wife of Vijai Bahadur, along with her son, Jagbir Singh, and other ladies and children who had however, in the meantime managed to escape inside the southern kothari. Entering the house, Hardeo is said to have aimed a bhala blow at Vijai Bahadur, Vijai Bahadur however, caught the bhala and threw it down. Kaptan Singh accused thereupon fired at Vijai Bahadur on account of which he fell down dead. In the meantime, several people including Sunder Singh, Shri Krishna, Sheo Ratan and Baldeo are said to have come upon the roof of the house of one Prithviraj and from there they had managed to see the occurrence. Ram Krishna Singh, although he was shot several times, however, managed to escape by going inside the aforesaid kothari which faces east and had closed the door from inside. Smt. Kamla Devi, however, picked up the spear that had been thrown by her husband and gave a blow upon accused Kaptan Singh on account of which he received injuries. In the meantime, 6 or 7 shots were fired and some of the pellets are said to have injured Jagbir Singh. Thereafter, all these accused and their companions managed to make good their escape. After the departure of the assailants, Ram Krishna Singh came out of the house and dictated F.I.R. Ext. Ka-7 to Narbir Singh and taking this F.I.R. with him, he went to P.S. Harpalpur which lay at a distance of about 10 miles, where he handed over this F.I.R, on the same date at about 11-15 a.m. Sri T. P. Singh, who was posted as Second Officer P. S. Harpalpur, took up investigation. He interrogated Ram Krishna Singh at the police station and then left for village Gauriya where he reached at about 2-30 p.m. He prepared inquest reports relating to the dead bodies of Smt. Beti and Vijai Bahadur. He found Jagbir Singh in an injured condition. The two dead bodies in a sealed condition along with Jagbir Singh were despatched to District Hospital Fa-tehgarh. The investigating Officer took possession over blood-stained and plain earth which he sealed in separate containers. He also found 4 fired cartridges, 2 of which bore the mark P. O. F. (Pakistan Ordnance Factory) while the remaining bore the mark K. F. He also found fired cartridges of 12 bore, three L. G. pellets, one piece of lethal and bullet of 300 bore rifle. These were properly sealed.
4. Medical examination of Jagbir Singh was conducted on 24th March, 1973, at 7-30 p.m., by Dr. S. C. Pandiya. According to the doctor, a gunshot wound of 1/4" diameter on the outer side of the left foot near the ankle with diffused swelling of the whole foot was noticed. The injury was kept under observation. According to the opinion of the doctor, the injury was caused by a pellet and its duration was about one and a half days old.
5. The autopsy upon the dead bodies of Vijai Bahadur and Smt. Beti was conducted by Dr. R. P. Chowdhry, Medical Officer, District Hospital, Fateh-garh, on 25th March, 1973. It may be noted here that Chowdhry died before the committal of this case and, as such, the post-mortem reports were proved by secondary evidence before the learned Sessions Judge.
6. The following ante-mortem injuries were found upon the body of Vijai Bahadur:
1. Gunshot wound of entry with inverted and lacerated margins 2"X2" (circular) x brain cavity on occipital prominence slightly to right mid-line. Blackening and tattooing around the margins of wound present 1/4" broad alround.
2. Gunshot wound of exit with everted and lacerated margins 6" X 4" X brain cavity deep on left frontal prominence area and left eye.
The internal examination revealed skull bones to have been fractured. Brain was badly lacerated and torn into pieces and present outside. Base was fractured. In the view of Dr. Chowdhry, the death was caused due to coma as a result of firearm injuries.
Following ante-mortem injuries upon the body of Smt. Beti were found:
1. Gunshot wound of entry with inverted and lacerated margins 1-1/2"X 1-1/2" X going inside chest cavity (circular on right side front of chest) 3" away from right nipple at 2 o'clock position and 1/2" away from mid-line of front of chest. Blackening and tattooing around the margins of wound present 1/4" broad.
2. 5 Gunshot wounds of exit with everted and lacerated margins 1/4" X 1/4" (circular) each in area 4"X3" of left side back 2" below lower angle of left scapula.
3. A braised contusion 1"X 3/4" on outer end of left eyebrow.
The internal examination revealed 3rd right ribs to have been fractured under external injury No. 1. Pleura was lacerated. Lungs and pericardium were lacerated.
One wadding piece was recovered as embedded in left lung substance. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of injuries.
7. Proceedings under Sections 87 and 88, Cr. P.C. (Old) were taken against the accused on 29th March, 1973. However, on 2nd of April, 1973, accused Du-larey, Phool Singh, Bisrarn, Lankusfo and Ram Dayal surrendered in Court. Balbir, Shanker and Hardeo surrendered in the Court on 9th April, 1973. Kaptan Singh surrendered in the Court on 26th April, 1973. It may be noted here that against Gulshera and Shamshera a charge-sheet was submitted in their state of absconding. Girish was shot dead in an encounter on 25th May, 1973. It may also be noted here that interrogation of Jagbir Singh was done on 8th May 1973. After completing investigation, all the accused were asked to stand their trial for the offences for which they were subsequently found guilty and sentenced.
8. The defence of accused Kaptan Singh was that he had undergone full period of imprisonment. He admitted the various murders that had taken place either in his family or in the family of the complainant. Existence of proceedings under Sections 107/117, Cr. P.C. was also admitted, but, according to him, one of these cases was compromised. He denied that he had anything to do with this occurrence. He denied that he was absconding. He denied his relationship with Ram Dayal and Dularey. He categorically stated that he was not a member of unlawful assembly along with Gulshera, Shamshera and Girish. Balbir's statement is more or less on the same lines as that of Kaptan Singh. He further contended that he was at the house of his father-in-law and had not absconded. Sukkha denied having anything to do with this occurrence. According to him, he was falsely implicated because he had given evidence against Ram Krishna Singh in connection with the murder of Narbir Singh, The defence of Ram Dayal was complete denial. He alleged false implication as he had voted against Gokaran in the election of Pradhan. He also stated that Sheo Ratan, a witness named in the F.I.R., was son of Gokaran. Dularey's statement was denial of the occurrence. According to him, he was falsely implicated because he had appeared as a witness against Vijai Bahadur and Ram Krishna Singh. Bisram accused stated that he was implicated because of his father Dularey and his uncle Malhey. He denied having anything to do with this occurrence. The defence of Malhey was also complete denial. He denied that he was absconding and alleged false implication on account of enmity of the complainant with Dularey accused. Accused Lankush denied having anything to do with this occurrence. He denied that he was absconding and alleged false implication on account of the fact that his brother Sukhlal had appeared as a witness against Ram Krishna Singh, Shanker accused stated that he was a resident of village Marha and denied knowing rest of the accused. He denied having anything to do with this occurrence and alleged false implication on account of the fact that he had appeared as a witness against Ram Krishna Singh complainant in connection with the murder of Ranbir in 1970. Barey Lalla accused stated that he belonged to village Gauhana. He denied having anything to do with this occurrence or having anything to do with this group. He alleged false implication on account of enmity with Narbir and Rajvir with whom he was inimical so much so that proceedings under Sections 107/117, Cr. P.C. had taken place between him, on one hand, and Narbir, on the other. Narbir, according to him was the scribe of this F.I.R.
9. The learned Sessions Judge accepted the prosecution story and, having relied upon the testimony of witnesses and having rejected the defence, sentenced and convicted the appellants as above.
10. It was argued before us by Sri S. N. Mulla learned Counsel for the appellants that the gang of Gulshera and Shamshera was responsible for this incident and, for reasons manifest, the complainant Ram Krishna Singh thought fit to seize the opportunity to implicate the present appellants of this case to feed fat his grudge. His contention was that after 1958 when Bhuri Singh was murdered for which Kaptan Singh, Dularey and Malhey had undergone sentence and had been released in 1967 on probation, nothing was done from the side of Kaptan Singh which could have shown that they were active in taking revenge from the complainant's family. In this connection, it was argued that in 1970, brother of Kaptan Singh was murdered, that is to say, from 1967 to 1970 the party of Kaptan Singh had not done anything. On the other hand, his own brother had been murdered and that murder case was pending when this incident on 23rd March, 1973, is said to have taken place. It was urged that from 1970 to 1973, in any case, in spite of the murder of Ranbir, Kaptan Singh's group had not done anything. Thus, they could have no hand in this incident. It was urged that actually Ram Krishna Singh had invited the attention of the gang of Gulshera and Shamshera because admittedly as is the prosecution story, Ram Krishna Singh had helped the police in an encounter with this gang 5 or 6 days before this incident in which Babu brother of Gulshera and Shamshera, and two others were arrested. It was urged that although in the evidence it was casually mentioned as if gang of Gulshera and Shamshera was on visiting terms with Kaptan Singh, but no overt act was shown on the basis of which it could be held that one group or the other earlier to this incident had helped each other in any way. It was rightly contended before us that the gang of Gulshera and Shamshera did not require anybody's help to perpetrate this crime. It was also rightly contended that if the group of Kaptan Singh was inclined to commit the offence, that group by itself consisting of the appellants and one Hardeo, who is brother of Kaptan Singh and who is dead, was sufficient and would not be obliged to the gang of Gulshera and Shamshera to do this crime, Indeed, it was, rightly also, argued that having taken the help of Gulshera and Shamshera, who were motivated to commit this crime, it would be Gulshera and Shamshera who would wreak vengeance for what Ram Krishna Singh did to their brother Babu and two members of the gang, and yet the prosecution evidence, as disclosed in this case, is as if these sharp shooters and leaders of the gang did not inflict any injury on any member of the complainant's family while it was left only to the three brothers, namely, Kaptan Singh, Balbir Singh and Hardeo deceased to commit the crime. So far as the motive part is concerned, as was mentioned earlier, we are more inclined to agree with the argument advanced before us that there was motive for false implication in the background of what we have discussed above rather than motive for commission of the crime because to us it appears that Ram Krishna Singh thought it fit to seize the opportunity of implicating the entire group of Kaptan Singh for the crime committed by Gulshera and Shamshera's gang alone because he would be killing two birds with one stroke. He would avenge the family feud and see that the whole group was implicated in this case so that he and Vijai Bahadur and others, who were implicated in the murder of Ranbir, were allowed to defend themselves with impunity. The argument that why true assailants would be left out, as is the usual argument made in such cases, loses importance because Ram Krishna Singh knew that at one time or the other the gang of Gulshera and Shamshera was bound to be liquidated with the result that perpetrators of this double murder would eventually meet their own fate. It has come on record that Girish, one of the members of the gang of Gulshera and Shamshera, has been shot dead in subsequent encounter on 25th May, 1973. Thus, it cannot be urged that for this double murder only those persons, who had perpetrated this crime, were being implicated, specially when it was admitted to the prosecution that gang of Gulshera and Shamshera had joined this group of Kaptan Singh. As mentioned by us earlier, the gang of Gulshera and Shamshera had motive to retaliate for what was done by Ram Krishna Singh 5 or 6 days earlier. It was to teach a lesson to the family of Ram Krishna Singh for meddling with the gang. Indeed, it appears that having committed this crime, they were given a chase by the police because we find that from the side of defence Ext. Kha 10 has been filed which shows that Sri Ashok Kumar Misra, Dy. S. P., Farrukhabad, had come on jeep to the police station and taking P.A.C platoon, surrounding of this gang was planned. It appears that the entire police force of this very police station probably had also taken part in that encounter and that explains why this F.I.R. was got dictated at leisure with full consultation with the police as well as with the active connivance of Ram Krishna Singh who is a helper and probably informer of the police in this case. The learned Sessions Judge tried to get out of the testimony of Jagbir Singh P.W. 5 on the ground that he, being a child witness, was not able to follow the import of the question. We are not impressed with this explanation because if the question was unintelligible, the Sessions Judge had ample powers to get the question clarified and even put questions on his own to this witness. Having allowed the questions and answers to come, we do not think it was fair on his part to brush aside the consequences of those replies simply because it was damaging to the prosecution. We find that in this case the scribe of the report, namely, Narbir Singh has not been examined. Now Jagbir Singh categorically admitted that the Sub-Inspector had come to his house at about noon, that Ram Krishna Singh wrote something on a piece of paper on the dictation of the Sub-Inspector and that paper was given to the Sub-Inspector after having been signed by Ram Krishna Singh. He also admitted that at that time Narbir Singh was also present. He also admitted that on the bidding of the Sub-Inspector, Narbir Singh scribed whatever Ram Krishna Singh had written legibly. He also admitted that the Sub-Inspector stayed up till evening at his house. This clearly goes to show that the F.I.R, cannot be said to be a prompt story, nor can such an F.I.R. be said to be a prompt F.I.R. having been handed over at 11-15 a.m., when the incident is said to have been committed at about 9 a.m. and when the distance between the village and police station was about 10 miles. Moreover, there is one more clinching evidence which goes to show that the whole story put in the F.I.R. was a trumped up story. If we look to the inquest report of Vijai Bahadur which is Ext. Ka-13 as well as photo of his body which is Ext. Ka-14, it comes out as if at the time of the inquest a wound was found on his left palm. Having found or rather wrongly found this wound in the palm, in the first information report it was categorically mentioned as if Hardeo gave a spear blow to Vijai Bahadur which hit him on his left hand and later on the wife of Vijai Bahadur picked up this bhala and gave the blow with it to Kaptan Singh which injured Kaptan Singh. However, in the post-mortein report of Vijai Bahadur only one gunshot wound, namely, of entry and exit was noticed and no injury in the hand was found. This circumstance completely knocks the bottom out of this prosecution story that Hardeo had hurled a spear which hit deceased Vijai Bahadur in the hand, and later on, this very spear was picked up by Vijai Bahadur's wife with which she gave a blow to Kaptan Singh, All the witnesses had tried to trot out this story. If, indeed, the witnesses had seen the occurrence, and if, indeed, such a spear was hurled, we fail be understand why Vijai Bahadur could have escaped such an injury. It was definitely put to Ram Krishna Singh in cross-examination done for Sukkha, Ram Dayal and others that the report was scribed by Narbir Singh at the house on the dictation of the Sub-Inspector. It, therefore, cannot be argued that a chance question was put to Jagbir Singh and in confusion he gave out such a reply, As we shall presently discuss, all the witnesses now try to resile having given any such statement to the investigating officer that injury with the- help of spear was caused on Vijai Bahadur. They purposely resiled from having given such a statement because once the post-mortem report revealed that there was no such injury on the palm of the deceased Vijai Bahadur, they had no option but to substitute some such statement which could explain the specific mention of this injury in the F.I.R. as well as omission of such injury from the post-mortem report This circumstance leaves no room for doubt that this F.I.R. was dictated with the definite object of implicating not only all these accused of this case, but actually putting specific weapons with three brothers with whom the family of the deceased and that of the complainant had an axe to grind since 1955. To illustrate, we may mention here the injuries caused to the mother of the complainant were ascribed to Balbir. The gunshot injuries caused to Vijai Bahadur were ascribed to Kaptan Singh and the so-called spear injury in the palm of Vijai Bahadur was escribed to Hardeo deceased, As rightly argued by the learned Counsel for the appellants, once the gang of Gulshera and Shamsihera came to this village with the definite object of taking revenge from Ram Krishna Singh or his family for the arrest of Babu and two members of the gang, it is surprising why these desperados did not actually do anything, but left to the family of Kaptan Singh to perpetrate this crime. On the other hand, this crime was committed by the gang of Gulshera and Shamshera alone as a sort of lesson to be taught to Ram Krishna Singh for siding the police and making the arrest of Babu and others possible.
11. With this background and holding that this F.I.R. was not a true story of the incident that occurred, but was a document written out with the consultation of police and with the active connivance of Ram Krishna Singh, we would now proceed to discuss the testimony of the so-called four eye-witnesses, namely, Ram Krishna Singh P.W. 1, Baldeo P.W. 3, Smt. Kamla Devi P.W. 4 and Jagbir Singh P.W. 5.
12. Ram Krishna Singh in his examination-in-chief tried to say that seeing the accused as well as the gang of Gulshera and Shamshera, he and his brother rushed inside their house shouting. His mother, who was in the barotha, tried to close the door, and then Balbir Singh fired upon her on account of which she fell down. He then said that he and Vijai Bahadur had by that time come in the courtyard. In that courtyard were present Kamla Devi, wife of Vijai Bahadur, and Jagbir Singh, a minor son of Vijai Bahadur. Then Hardeo hurled a spear on Vijai Bahadur. Vijai Bahadur snatched the spear and threw it down whereupon Kaptan Singh shot at his to other on account of which he fell down. Seeing his brother having fallen, he rushed inside the kothari, the door of which faced east and shut its door. Thereafter, Kamla Devi took up the spear and gave a blow with the appear to Kaptan Singh. He saw all these things from inside the kothari through the daraz of the door. The other accused continued firing and in that connection Jagbir Singh got injured. In cross-examination the witness said that when Balbir fired, he was standing on the east and that Balbir Singh's gun was at & distance of one or two cubits from that of his mother. He had also said that his mother had managed to shut one of the shutters, but the other could not be shut on account of which she received injuries. If we look to the site-plan, as well as peruse his statement it would come out that from the place where this witness was standing in the barotha, he could not have seen as to who actually shot at his mother. Seeing the topography of this fallen barotha, it is impossible to believe that while Ram Krishna Singh was running for his life, he would have been in a position to see the actual assailant who shot at his mother, specially when one of the shutters of the door was closed. Indeed, as was rightly argued before us, once both the brothers ran for their lives, we do not think either of them would have dared to look back for the simple reason that had they done so, they would not have been able to run as fast as they would have done without peeping back. Thus, the statement of this witness that he had actually seen his mother being shot at by Balbir cannot be accepted in the face of the circumstances noted above. Indeed, we are inclined to accept this argument that either this witness was not at all present at the time of the incident or, if he was present, he had managed to run to the south towards ahadi of his house in order to save his life. We may note here that it has come on record that the wall on the southern side was of lesser height. He had probably managed to escape, otherwise we have no doubt in our minds that with these sharp shooters in the persons of Gulshena and Shamshera with rifles he would not have escaped for his life; on the other hand, he would have met with the same fate as that of his brother. In his anxiety to make himself a witness of each and every event that took place in the courtyard, he tried to say as if he had managed to escape being injured by rolling on the ground and crawling inside the kothari. This sort of performance by this witness is simply a fiction of his Imagination. What is more, having seen the fate of his brother and mother, he would not have dared to peep from the kothari had he taken shelter inside the same. His testimony, therefore, under the circumstances, does not inspire confidence, He is an interested witness so far as Kap-tan Singh and other accused are concerned. We, therefore, have no hesitation in rejecting his testimony.
13. Baldeo P.W. 3 tried to say as if he was going to cut grass when he managed to be at the house of Vijai Bahadur, and, having seen the accused and gang of Gulshera and Shamshera, he rushed towards the east and then along with several others climbed up the house of Prithvi Raj and via his roof he managed to reach the south-eastern chhat of Ram Krishna Singh. In cross-examination he had said that previous to climbing this chhat, he had not heard any fire, but in the court he said that he had heard shots of fire. This statement is wrong because no pellets or khokhas were found outside by the investigating officer. The witness in the first breath said in examination-in-chief that when he boarded the chhat, he saw 6 or 7 shots having been fired and at that time in the courtyard there was Vijai Bahadur and his son alone and that there was nobody else. He thus excluded Kamla Devi. Later on, he tried to correct himself. Then again, the witness said that the accused had fired towards the kothari in which Ram Krishna Singh had taken shelter. No signs of firing were found on the shutters of this kothari. Indeed, had this been a fact, it would not have been possible for Ram Krishna Singh as he said that he peeped from that kothari. The witness in the examination-in-chief tried to say that he had not seen the spear causing injury upon Vijai Bahadur. In cross-examination the witness admitted that he is a labourer by profession and has no cultivation but then tried to say that he had 3 or 4 cows. The witness admitted that in between his house and that of Prithvi Raj there were 50 or 60 houses. In 161 statement he had said as if on hearing shouts he had come on the spot. In the court of session he tried to say that he was going to scrape grass when he managed to be near the house of Vijai Bahadur. This goes to show that the witness is a chance witness. Besides, the evidence is that shots were being fired towards the direction where these witnesses were standing. Had this been so, we dare say that some of them might have received injuries. In fact, we are not prepared to believe that in this atmosphere anybody would have dared to be near about the house of the complainant, much less to challenge the accused. Besides, we are not prepared to hold that so many persons like Baldeo and others would have been allowed by the inmates of the house of Prithvi Raj to go inside the house and after climbing their chhat jump on the chhat of Ram Krishna Singh. This part of the story, it appears to us, has been deliberately introduced to make presence of outside witnesses possible. The witness admitted to be a labourer. He said that he had no cultivation of Ms own. A suggestion was made that he used to cultivate on batai the cultivation of Ram Krishna Singh and also used to be a labourer of Vijai Bahadur. This suggestion appears to be correct which explains the reason why he became willing to appear for the prosecution. It is surprising that none of the neighbours was examined in this case and it was left to Baldeo, a resident of a far off place, to appear for the prosecution. We may mention here that Ompal was cited in the charge-sheet. According to Ram Krishna Singh Ompal had come to the house of Gokaran who is his cousin. Ompal would have been a better witness than Baldeo to have appeared, but he was withheld. We would, therefore, hold that Baldeo is a chance witness and being under the thumb of Ram Krishna Singh, he had to appear for the prosecution. His testimony can be safely rejected.
14. Coming to the statement of Kamla Devi P.W. 4, we find that this lady named all the accused apart from Gul-shera and Shamshera as well as Girish. She then gave the statement how a bhala was hurled towards her husband, how Kaptan Singh fired upon her husband and how she gave a bhala blow to Kaptan Singh. She also said how her son received injury. In cross-examination, she admitted that she had not Been the outside incident with her own eyes, but we find that in her 161 statement she had given out that particular story. Indeed, she admitted that Ram Krishna Singh had asked her to depose and that is why she gave that statement to the Sub-Inspector. If, therefore, she could be persuaded by Ram Krishna Singh to give a particular type of statement, she can be persuaded to stick to the prosecution story. She also said that Ram Krishna Singh managed to escape in the kothari by crawling, and while he was crawling, he was not fired. As mentioned by us above, it is impossible to believe that had Ram Krishna Singh been in the courtyard, when the assailants came inside, he would not have been allowed to escape. We find that in examination-in-chief she said that at the time of the incident, her two daughters and her deorani were also in the courtyard, but hearing the .gunfire, all of them took shelter in the kothari. Looking to the maternal instinct, we would rather hold that this lady looking to the background of the family feud and also hearing the shouts of her husband and Ram Krishna and seeing them rushing inside the house, would not have allowed her son to remain in the courtyard, but like her daughters and deorani, she would not have lost a minute to take shelter along with her son inside the kothari. This inference is strengthened when we find that she was spared. We shall presently discuss, when we take up the statement of Jagbir Singh as well as the statements of the investigating officer and the doctor, who examined him, that actually we do not know what caused injury upon. Jagbir Singh. Suffice it to say that if he was outside, and so was Kamla Devi, and all the assailants, as was the prosecution case, came inside along with this gang, they would not have allowed either Kamla Devi or Jagbir to escape, specially when they had no hesitation in shooting the mother of Ram Krishna Singh. Kamla Devi denied having given this statement to the investigating officer that Hardeo's spear had injured her husband's left hand. Thus, she is conscious of the infirmity in the prosecution story and has no compunction in resiling from that statement like Ram Krishna for obvious reasons. As mentioned by us above, when she was prepared to give a particular story to the Sub-Inspector having not been an eye-witness on the bidding of Ram Krishna Singh, she could give any type of statement in the Court to suit the occasion. After all, her husband had died and her son and her husband's brother have to be saved from future vengeance. She would not like the family of Kaptan Singh to be spared because she also knows like Ram Krishna Singh that ultimately Gulshera and Sham-shera's gang was bound to be liquidated sooner or later. She would, therefore, achieve the object for the double murder of her mother-in-law and her husband. We, therefore, are not impressed by her testimony and we reject the same.
15. Coming to the statement of Jagbir Singh P.W. 5, he too had given a statement to the investigating officer that Hardeo had hurled a spear upon his father which had caused injury in his left hand, but he denied having given that statement when he was put a specific question in the Court. It goes to show to what extent he is prepared to go. He tried to say as if he received injury in the courtyard. Now, we find Jagbir Singh admitting that he stayed in the hospital for about one and a half months. The Sub-Inspector interrogated Jagbir Singh in the village on 8th May, 1973. The investigating officer tried to give a curious statement as if he tried to search for Jagbir Singh in between 23rd March and 8th May, but had come to know that he was in the hospital. We fail to understand why no attempt was made by him to interrogate Jagbir Singh in the hospital. What is more, no attempt was made in this case to file the bed-head ticket of Jagbir Singh or any medical examination report to show for what reason he was admitted in the hospital and what was the cause of the injury. The doctor, who was examined in this case is P.W. 2, namely, Dr. Pandiya. No doubt, he examined Jagbir Singh on 24th March and stated as if this was a gunshot injury, and the injury was kept under observation, but in cross-examination he admitted that nowhere it was mentioned in the letter as to which part of anatomy was injured. He admitted that he did not probe the injury as it was kept under observation. He also admitted that he did not find any pellet at the time of the examination. He admitted that such an injury could be self suffered. We dare say in the absence of any pellet or absence of further examination of the injury, which was kept under observation, how it could be argued for the prosecution that such an injury, that was examined by Dr. Pandia, must necessarily have been caused by a gunshot. By suppressing all these important documents, which could throw light upon the nature of injury and the cause for the same, we can safely infer that had these documents been filed, they would have been against the prosecution story. Jagbir Singh repeats the story of Baldeo having come on roof. He, therefore, has no compunction for truth but, being a child witness could be tutored to speak for the prosecution. The witness admitted that he had not seen Balbir Singh firing upon his grandmother. When he was confronted with his 161 statement where he said about that fact, he said that from the courtyard it was visible that Balbir Singh had fired upon his grandmother. Looking to the topography, as given in the site-plan, and the statement of this witness that there was a wall in front of the door, it is impossible to believe how anybody inside the courtyard could see what happened at the door or outside. Indeed, Smt. Kamla Devi did not speak about this and that itself shows that to what extent this child witness could be tutored. We, there-tore, have no hesitation in rejecting his testimony as well.
16. It is true that two persons have lost lives, but it is equally true that in this case no opportunity was lost sight of either by the investigating agency or by the complainant's family to see that all those accused, with whom there was enmity, should be roped in and falsely implicated to wreak vengeance. It is not a case of giving up the true assailants, as noted above by us, because these persons knew and, indeed, Earn Krishna Singh having helped the police in an encounter knows, that sooner or later Gulshera and Shamshera's gang would suffer the fate which is reserved for gangsters and thereby the death of two inmates of the house would be avenged. That is why they have no compunction in implicating these accused so that they may not escape and should suffer for what was done by the gang of Gulshera and Shamshera.
17. As a result of discussion, we have no hesitation in coming to the conclusion that the prosecution case is a mixture more of falsehood than truth and the falsity consists in implicating all these accused.
18. As a result, we find all the accused not guilty of the various charges with which they were asked to stand their trial. They are acquitted on all the counts. Criminal Appeals Nos. 559, 567, 568 and 578 of 1974 are allowed. The reference for capital punishment is rejected. Accused Kaptan Singh, Dularey and Malhey are in jail. They shall be set at liberty forthwith unless wanted in some other connection. Accused Barey Lalla, Sukkha, Ram Dayal, Bisram Lankush, Shanker and Balbir Singh are on bail. They need not surrender. Their bail bonds ere cancelled. Their sureties are discharged.