JUDGMENT M.C. Jain, J.
1. These are two connected appeals directed against the judgment and order dated 14/15th January 2004 passed by Sri Hari Singh, Additional Sessions Judge, Court No. 5, Rampur in Sessions Trial No. 109, 110 and 111 of 2002 which were tried together. The accused appellant Santok Singh is father and the other appellant, Nirmail Singh is his son. Santok Singh has been convicted under Section 302 read with Section 34 I.P.C, whereas Nirmail Singh has been convicted under Section 302 I.P.C.
2. The murder of one Sohan Singh is involved. Death sentence has been awarded to Nirmail Singh whereas life imprisonment has been awarded to Santok Singh. Santok Singh and Nirmail Singh were tried under Section 25 of the Indian Arms Act also in sessions Trial No. 110 of 2002 and 111 of 2002 respectively. Sentence of three months rigorous imprisonment to each of them has been awarded for the said offence. The two sentences have been ordered to run concurrently. In addition to the imprisonment for life under Section 302 read with Section 34 I.P.C., the accused appellant Santok Singh has also been awarded a sentence of fine of Rs. 50,000 - out of which a sum of Rs. 25,000/- has been ordered to be given to the complainant P.W. 1 Sukhbinder Singh and the remaining 25,000/-is go to the State Exechequer.
3. Since death sentence has been awarded to the accused appellant Nirmail Singh, the Additional Sessions Judge has also made reference under Section 366(1) Cr.P.C. for the continuation of the death sentence.
4. A resume of the relevant facts would be helpful in appreciating the succeeding discussion. The incident took place on 3.11.2001 at about 2 P.M. in the jungle of village Dundawala under Police Station Swar, District Rampur which was situated at a distance of about 6 Kms. from the concerned Police Station. The report was lodged by Sukhbinder Singh PW 1 (eyewitness) son of the deceased Sohan Singh. As per this facts unfolded in the F.I.R., the complainant PW 1 Sukhbinder Singh was irrigating the field of his potato crop on the fateful day. His uncle Mohan Singh, his tractor driver PW 2 Sultan Ahmad and neighbour PW 3 Tarsem Singh were also present there. His father Sohan Singh reached the field on his motorcycle No. U.P. 22B 9548 at about 1.45 P.M. and after watching the field for about 15 minutes left it with the complainant on motorcycle. The motorcycle was being driven by his father Sohan Singh (deceased) and he himself sat on the pillion seat. They had only covered a distance of about 100 meters from their field of potato crop and had reached the Chak-road when the two accused appellants emerged from their hiding in sugarcane field accompanied by one Arif alias Bhola and an unknown person. Nirmal Singh challenged mouthing abuses and opened shot on his father-Soha Singh from his countrymade pistol. The complainant PW 1 Sukhbinder Singh jumped from the pillion seat of the motorcycle and ran shouting. On his shouts his uncle Mohan Singh, neighbour Tarsem Singh and driver Sultan Ahmad rushed up to the spot. On receiving the, first shot, Sohan Singh fell down in the field situated on the northern side, of the Chak road. The assailants then neared Sohan Singh. Santok Singh, Arif and their unknown companion then opened shots on Sohan Singh from close range. Arif alias Bhola had a knife also with which he gave blow to Sohan Singh. When he and the witnesses advanced to come to the rescue of the victim, Santok Singh, Nirmail Singh and their unknown companion threatened them with their weapons that they would also be killed if they dared to advance further. Sohan Singh also had his licensed revolver number 2456 of 38 Bore with him. After killing him, Arif alias Bhola with the help of the knife that he had cut the cord of the revolver of Sohan Singh hanging on his shoulder and took it. The assailants then ran away flaunting their weapons.
5. It was also related in the F.I.R. that the deceased was Pradhan of village Bhuvara. Santok Singh and Nirmail Singh wanted to illegally possess the land of Gram Samaj lying in front of their house. The complainant's father Sohan Singh deceased had prevented them from doing so and he was about to get a resolution passed for the construction of a school over that land. It was for this enmity that the father and son (Santok Singh and Nirmail Singh) in association with a notorious outlaw Arif @ Bhola with whom they were close and with an unknown person. committed this crime. The F.I.R. further mentioned that a Chappal of one of the assailants was left at the spot. The motorcycle of the deceased was also lying at the spot. After the incident, a number of persons came to the scene of occurrence.
6. On the lodging of the F.I.R., a case was registered and the police swung into action. The Investigating Officer reached the spot and busied himself in the activities related to the investigation of the case. The inquest report of the dead body of Sohan Singh was prepared and after completion of necessary documents, the dead body was sealed and sent for post mortem. Three empty cartridges of 12 Bore had also been found at the spot which were taken in possession besides bloodstained and simple earth as also one Chappal
7. The two accused were arrested by S.O. PW 11 K.N. Misra on 4.11.2001 near the culvert of Manpur Ghoghar river at 3.10 A.M. while they were going on motorcycle One countrymade pistol of 12 Bore with two live cartridges had been recovered from each of them. The same were immediately sealed.
8. It should also be related here that the three empty cartridges recovered from the spot and the countrymade pistols recovered from these two accused were sent for examination to the ballistic expert who submitted report Exhibit Ka 29.
9. Post mortem over the dead body of the deceased was conducted by PW 4 Dr. Satish Chandra on 4.11.2001 at 2.25 A.M. The deceased was about 60 years of age and about 1/2 day had passed since his death. The following ante mortem injuries were found on his person:
1. Firearm wound of entry present on left side face, just above angle of mouth, size 1.5 cm x 2 cm x neck tissue. Blackening present in area of 10 cm x 8 cm around the wound.
2. Multiple firearm wound of entry present on abdomen, just left side of umbilicus in area of 6 cm x 5 cm, each wound size 0.5 x 0.5 cm x abdomen cavity deep.
3. Incised wound present on left iliac fossa, size 10 cm x 1.5 cm x abdomen for exposed.
4. Multiple firearm would of entry present on anterior side of chest, neck, abdomen and both arms. Each wound size 0.5 cm x 0.5 cm x muscle to cavity deep.
5. Incised wound present on .5 cm at 12 O'clock position. Transverse in direction, size 10 cm x 0.2 cm x skin deep.
6. Two firearm wounds of entry present on anterior side of right thing in middle 1/3rd part. 9 cm apart from each other. Each wound size 0.5 cm x 0.5 cm x muscle deep.
7. Linear abrasion present on left side chest and sternum in lower 1/3rd part, size 9 cm x 0.1 cm.
10. On internal examination, pleura was found ruptured. 8 pellets were recovered from both the lungs and 4 from the heart. 26 pellets, 2 Tiklies and one wadding cork were also recovered from the abdominal cavity. Death, had occurred due to shock and haemorrhage as a result of firearm injuries.
11. The defence was of denial and of false implication.
12. The prosecution in all examined 12 witnesses in support of its case including Doctor, Investigating Officer and other formal witnesses. The star witnesses of the prosecution were three, namely, PW 1 Sukhbinder Singh (son of the deceased), PW 2 Sultan Ahmad and PW 3 Tarsem Singh who rendered eyewitness account of the incident.
13. The evidence adduced by the prosecution commended itself to the learned trial Judge who recorded the impugned judgment. The matter is now in appeal before this Court
14. In criminal appeal No. 573 of 2004 arguments have been advanced by Sri J.S. Sengar, assisted by Sri N.I. Jafri, Advocate for the appellant Santok Singh whereas in criminal appeal No. 3710 of 2004 Sri G.S. Chaturvedi, Sr. Advocate and Sri J.S. Sengar Advocate assisted by Sri N.I. Jafri advanced the arguments for the accused appellant Nirmail Singh. Arguments from the side of State came to be made by Sri V.S. Misra, Government Advocate in both the appeals learned Counsel for the complainant Sri I.M. Khan assisted by Sri Rajeev Upadhyay also argued in opposition of the appeals to counter the arguments of the learned Counsel for the appellants. We propose to deal with the arguments advanced at the bar one by one. But before doing that it would be appropriate to set out the gist of the testimony of eyewitnesses as well as the defence witnesses. PW 1 Sukhbinder Singh informant is the son of the deceased and was accompanying him at the relevant time on motorcycle. They had sown the crop of potato in their field situated in the jungle of village Dundawala. It was being irrigated by him, his uncle Mohan Singh, tractor driver PW 2 Sultan Ahmad and neighbour PW 3 Tarsem Singh. It was a about 1.45 P.M. that his father came there on motorcycle to supervise the irrigation of the crop. He stayed there for about 10-15 minutes whereafter he left the field along with him on the motorcycle. That is, this witness accompanied his father on the pillion seat of his motorcycle when the latter was returning from the field after supervising the irrigation of the crop. They had covered only a distance of about 100 meters towards east, reaching the Chakroad that the two accused appellants (father and son) with one Arif alias Bhola and an unknown person suddenly emerged from the nearly sugarcane field and surrounded them. Nirmail Singh issued exhortation for killing and immediately, he (accused Nirmail Singh) opened shot on his father which hit him. His father fell down from the motorcycle in the north of the chakroad , which was a field wherefrom sugarcane crop had earlier been harvested. He himself (this witness) jumped from the motorcycle and ran shouting. His uncle Mohan Singh, driver PW 2 Sultan Ahmad and PW 3 Tarsem Single rushed from the potato field. All the assailants had countrymade pistols, but Arif alias Bhola had a knife too. After the fall of his father from the motorcycle, the assailant is neared him. Then, the accused appellant Santok Singh, Arif alias Bhola and the unknown assailant also opened shots on his father. Arif also gave knife blows to his father. He and other witnesses named above tried to come to the rescue of the victim, but the assailants threatened them, flaunting their weapons. Arif also severed the cord with which 38 Bore revolver of his father was hanging on his shoulder and took it away. Brandishing their weapons and issuing threats, the assailants ran away. His father died at the spot. Motive has also been spelt by him in his testimony that his father was the Pradhan of village Bhuwara and the accused appellants wanted to forcibly occupy the land of Gram Samaj situated in front of their house. His father was resisting their such efforts. He also spoke about the Chappal Khokhas and motorcycle of his father being lying at the spot.
15. PW 2 Sultan Ahmad was the tractor driver of the deceased, and PW 3 Tarsem Singh was his neighbour. Both of them were helping in the irrigation of potato crop of the complainant at the relevant time and they had rushed up to the scene of occurrence on hearing the gunshot and the shouts of PW 1 Sukhbinder Singh. The names of both of them find place in the promptly lodged F.I.R. and they have corroborated the testimony of PW 1 Sukhbinder Singh in so far as it relates to the pan of subsequent shots opened on the deceased and of knife blows given to him by Arif alias Bhola as also of taking away the revolver of the deceased by him, severing the cord. The incident had been witnessed by them from a distance of about 20 paces.
16. The accused also examined 4 witnesses in defence. DW 1 Yogesh Kumar Rastogi, Advocate proved an application and affidavit purported to have been prepared by him at the behest of PW 3 Tarsem Singh and filed in the Court. DW 2 Vinod Kumar Srivastav. Advocate proved the verification dated 21.5.2003 of the said affidavit of Tarsem Singh. The said affidavit, obviously has no meaning in the eye of law. The reason is that PW 3 Tarsem, Singh was examined before the trial Court on 8.1,2003 and the said application with affidavit purported to have been made by him were moved much later on 21.3.2003. Seemingly, the accused appellants were architects of the same fumbling for some way out.
17. DW 3 Dhani Ram of the office of District Magistrate, Rampur proved an entry in dispatch register at the Camp (sic) of the District Magistrate, Rampur at serial No. 1783 (Exh. Kha-4). This entry was to the effect that Jarnail Singh alias Jaimal Singh son of Dilip Singh had given an application regarding the arrest of his son and grandsons by the police and for their release. According to this witness, this application had been sent to Superintendent of Police Rampur on 5.11.2001. DW 4 Dr. Karam Chand Bavy came to say that on 3.11.2001, Jarnail Singh alias Jaimal Singh aforesaid resident of ullage Ambarpur had come to him at labour 7.30 P.M. and had told him that his son Santok Singh and grandsons Manjeet Singh and Nirmail Singh had been arrested by the police of P.S. Swar and that he wanted to inform the authorities in this regard to guard against their implication in some false case. This witness then prepared a fax matter and gave the same to Jarnail Singh for getting it typed. Jamaii Singh again approached him at 9 P.M. with the typed trader which he faxed to D.M.'s office. The testimony of DW 3 Dhani Ram and of Dr. Karam Chand Bevy also does not seen to be of any relevance for the merits of the appeal.
18. Now we address ourselves to the arguments raised before us. It has first been urged for the appellants that there was no motive on the part of the accused appellants to commit this crime and the motive imputed by the prosecution was too weak and tenuous. To recall, the motive as per prosecution was that the accused appellants wanted to forcibly possess Gram Samaj land situated in front of their house and they committed the murder of Sohan Singh simply because as Pradhan he was resisting their attempt. According to them, the motive could be on the part of Arif ahas Bhola to rob the pistol/revolver of the deceased, he being a notorious outlaw always in need of i effective firearms It should be stated for clarity here that it is an admitted feet that said Arif alias Bhola who was one of the participants of this crime was killed in an encounter with police after this incident.
19. It has been urged that they have rather been falsely implicated owing to election rivalry. Reference has been made to the statement of P.W 1 Sukhbinder Singh in his cross-examination that his father had fought the election of the office of Pradhah and that the accused appellants were not supporting him. The Submission of the learned Counsel for the appellants is that since they were supporting the rival candidate of the deceased, they hate been falsely impicated. it is pertinent to state that motive is not material in is case of eyewitness account. Even then the alleged false implicaition of the accused appellants on account of election enmity does not stand to reason at all. It is not disputed that the election had been won by. the deceased. To say in other words, he was not adversely affected by the alleged Support of the accused appellants to his rival candidate. It is a common feature that in an ejection to public office several contestants fight the election with supporters and opponents of each of them. The alleged enmity on account of election could not at all be a reason for the false implication of the accused appellants. The prosecution can bring on record only the facts known to it. The background of the motive for the commission of this Crime as known to the complainant was given in the F.I.R. itself that the accused appellants wanted to forcibly grab the Gram Samaj land in front of their house that his father (deceased) had resisted them as he wanted to get a school constructed over that land and further that he was out get passed a resolution for this purpose. He clarified also in his Statement before the Court that earlier to the incident, the Land Management Committee had passed a resolution for the construction of a school on that land but ,he came to know this factum only after the incident. Indeed. since the resolution of the Land Management Committee for the construction of the school over that land had already been got passed at the behest of the deceased, the design of the accused appellants to forcibly possess that land was virtually foiled and it was natural that they were chagrined to the extremity. To say in a word, their anger and grudge against the deceased was sharpened. Therefore, the accused appellants cannot be heard saying that the motive assigned by the prosecution was weak or tenuous or that they had been falsely implicated owing to election enmity. The fact, as we said, also remains that the motive loses its significance in case of direct ocular accounts as is the situation here.
20. It has analogously been argued for the accused appellants that it is an admitted fact that Arif alias Bhola (co-accused) was a notorious outlaw, involved in a number of criminal cases and he was a resident of the same village Bhuwara. He, as per the argument, would have committed this crime to loot the revolver of the deceased, an effective weapon, as he might have been in need of such weapons for committing crimes. It has also been Suggested that he with the unknown person could have committed this crime to achieve his goal. Reference has been made to the post mortem report of the deceased to emphasize that the deceased Sustained in all 7 injuries out of which 4 were firearm founds of entry, 2 incised wounds and I linear abrasion (which could have been sustained by the fall of the victim from the motorcycle). On this premise, it is contended that as per the own case of the prosecution Arif alias Bhola made use of firearm as well as knife and the unknown assailant also used firearm in assaulting the deceased. Therefore, the crime could well be committed by only those two.
21. It is not possible to accept this argument based on speculation or imagination. The consistent case of the prosecution, as established by the testimony of the three Eyewitnesses, is that the first shot on the deceased had been fired by Nirmail Singh accused appellant on receiving which the victim Sohan Singh had fallen down from the motorcycle. Thereafter, Santok Singh, Arif alias Bhola and their unknown companion fired shots on the deceased and Arif used a knife also to assault him. Such trustworthy evidence cannot be thrown over board on the basis of unfounded and imaginary argument advanced from the side of the accused appellants that only Arif alias Bhola and his unknown companion committed the crime.
22. The next argument from the side of accused appellants is that PW 1 Sukhbinder Singh is not an injured witness. It is unnatural, argued the learned Counsel, that despite being seated on the pillion seat of the motorcycle driven by his father (deceased), he would have escaped unhurt of the first shot, which according to the prosecution, was fired on the victim by, Nirmail Singh accused. We do not think that there was any dent in their testimony particularly when they withstood the lengthy and searching cross-examination unshakably. Further, the Investigating Officer PW 11 K.N. Misra explained that owing to paucity of time, he could not record the statement of these two witnesses on 3.11.2001 itself. They were named as witnesses in the F.I.R . Other activities relating to the investigation of the case including attempt to arrest of the culprits were to be attended to. The Investigating Officer could not be expected to ignore even other aspect of the investigation and to accord top priority to the recording of the statements of these witnesses before everything else. In any case, there was no undue delay in recording the statement of these witnesses by the Investigating Officer.
23. All the three eyewitnesses withstood the test of cross-examination firmly and nothing could come out to shake the central core of their testimony proving the guilt of the two accused appellants before us who have rightly been convicted by the trial Court. There is no basis for levelling criticism against the testimonial assertions of the three eyewitnesses
24. We should also mention at this juncture that the Investigating Officer had recovered bloodstained earth from the spot as well as three empties of cartridges as also of a Chappal (left by one of the assailants) Having regard to these recoveries too there can be no doubt about the site of occurrence
25. The learned Counsel for the appellants then made another argument that the factum of a chappal having been left on the spot by one of the culprits was an indicator as if he was in hot haste It could only be if the culprits were two or one only. We do not see any justification for so surmising by activating the imaginary process. The anything unusual in it that PW 1 Sukbinder Singh escaped unhurt. He was a young man aged in the neighborhood of 30 years and it was not unnatural that he could safely jump with alacrity and could escape unhurt. In an attack like the present one, the pillion rider of the motorcycle could not necessarily be hurt of the shot aimed from the from side at the person driving the motorcycle. He as well as the other two eyewitnesses of fact very well explained there presence. The incident took place only at a distance of about 100 paces from potato field of the complainant where he and other two eyewitnesses were irrigating the crop. His father had reached there on motorcycle only about 15 minutes back and it was thereafter that this witness had taken the company of his father to return back he me leaving the other two eyewitnesses on his field along with his uncle Mohan Singh engaged in irrigation operations. It goes without saying that irrigation of crop by its very nature at times requires to be attended by several persons.
26. PW 1 Sukhbinder Singh is also the maker of the F.I.R. which was lodged without loss of time at 3.10 P.M., the distance of the Police Station from the place of occurrence being about 6 Kms ..It is obvious that no time gap had intervened for any conception or deliberation to twist the reality and the names of the other two eyewitnesses also found place therein. Their presence, as we mentioned, is well explained. They are natural witnesses of the incident having regard to the place where it occurred.
27. Learned Counsel for the appellants made it a ground of criticism of the testimony of PW 2 Sultan Ahmad and PW 3 Tarsem Singh that the statement of the former was recorded by the Investigating. Officer on 10. 11.2001 and of the latter on 5.11.2001. We do not think it can make consistent case of the prosecution as proved by the sansfactory evidence of the three eyewitnesses is that the assailants were four including the present two accused appellants To repeat for emphasis, the incident had taken place only about 100 meters away from the field of the complainant wherefrom the deceased and PW 1 Sukhbinder Singh had just started on motorcycle. When Sohan Singh fell down from the motorcycle on receiving the first shot fired by Nirmail Singh accused appellant, the pillion rider Sukhbinder Singh jumped from the motorcycle and shouted attracting the witnesses PW 2 Sultan Ahmad and PW 3 Tarsem Singh working in the field. In case of time others could also arrive. Therefore, the assailants could not be fools enough to continue to be at the site after accomplishing their job. It was in their anxiety to get away from the scene hurriedly that one of them left one chappal there.
28. It has then been argued for the accused appellants that if they could take the services of the notorious outlaw Arif alias Bhola and one unknown assailant to do away with Sohan Singh, they would not have themselves participated in the commission of the crime, particularly when Arif alias Bhola belonged to the same, village Bhuwara and knew the target from before and could do away with him without any necessity of being identified by the accused appellants or any of them. It. according to them, obliterated the possibility of their presence at the spot. It is urged that they would not have been there when hired assassins were available to them. Again, this argument is woven around imagination with no firm basis. None knows how the mind of a culprit works at a particular time. It is not expected of the prosecution to explain each and every hypothesis. The notorious outlaw Arif could have been joined by the accused appellants to ensure successful accomplishment of their mission. Further, since they bore deep rooted grudge against the deceased, it was to afford them sadistic pleasure to liquidate their enemy with their own hands while joining others so as to be doubly sure that their mission did not fail.
29. One another argument from the side of accused appellants is that it is the admitted case of the prosecution that the deceased had passed from the way singly on the motorcycle just 15 minutes earlier and in case they were to eliminate him, they could easily do so at that time instead of waiting for his return from his field in the Company of his son PW 1 Sukhbinder Singh. The answer to this argument is simple. 'They might have ambushed themselves after the victim had reached his field. Moreover, the time of reaching of the victim at his field could not be certain to them. But after he reached there, it was sure that he would return therefrom. Therefore, it was in the scheme of their things to conceal themselves at a little distance of his field waiting for his return to do their job. His reaching the field might have been watched only to plan their action. There is nothing improbable that they decided to attack him on his way return from his field. They were font in number armed with deadly weapons and they were not to be afraid of the victim being accompanied by his son who could equally be dealt with effectively, if the accomplishment of their mission so demanded.
30. It has next been argued for the accused appellants that no other independent witness has been examined. It is to be pointed in this regard that apart from the witnesses examined by the prosecution, the name of Mohan Singh is also mentioned as the person who had reached the spot. Mohan Singh, too, was helping in the irrigation of the potato field of the complainant at the relevant time. He is uncle of the complainant PW 1 Sukhbinder Singh. Had he been examined, the argument probably could be that he was a close relative of the deceased. When no other witness had reached the site of the incident at the time it happened, there could hardly be any question of examining any other independent witness. The prosecution is not supposed to examine spurious witnesses titling them as independent witnesses. In the present case, non-examination of any other independent witness does not have any adverse effect on the prosecution case.
31. Another argument to assail the conviction of the accused appellants is that the ocular version and the medical evidence is inconsistent. We have given our anxious Consideration to this aspect of the matter and on in-depth analysis, we find that there is no inconsistency whatsoever between ocular version and medical evidence. Rather, they are in complete harmony, it should be stated that as per the post mortem report, the deceased had sustained 4 gunshot wounds of entry, 2 incised wounds land one abrasion on the left side of chest. The testimony of PW 1 Sukhbinder Singh is that the first shot had been fired on his father from the front side by Nirmail Singh. The post mortem report shows that ante mortem injury No. 2 was multiple firearm wounds of entry on abdomen just left side of the umbilicus. It was abdominal cavity deep and the ante mortem injury No. 4 was multiple firearm, wound of entry present on anterior side of chest, neck, abdomen and both arms. It was muscle to cavils deep. The evidence is that knife1 had been wielded by Arif alias Bhola and as per the statement of PW 4 Dr. Satish Chandra, incised wounds (injuries No. 3 and 5)could be caused by sharp edged weapon whereas injury No. 7 (abrasion) could be sustained by fall. It is also there in the testimony of PW 1 Sukhbinder Singh that after the first shot fired by Nirmail Singh resulting in the fall of his father from the motorcycle, the remaining three assailants, namely, Santok Singh accused appellant, Arif alias Bhola and the unknown person had neared his father and fired, shots on him. Besides, Arif alias Bhola had given blows to him by knife also. To the same effect is the testimony of PW 2 Sultan Ahmad and PW 3 Tarsem Singh. The submission from the side of accused appellants is that it was only in ante Mortem injury No. 1 that blackening had been found present in an area of 10 cm x 8 cm around the wound. There was no blackening or tatooing in the remaining three firearm injuries sustained by the deceased, though the statements of the witnesses are that the three shots had been fired on the deceased from close range. Suffice it to say in this regard that it was not possible for the witnesses to depose with arithmetical precision as to from what distance the shots were fired by the assailants on the deceased alter he had fallen down. In a sudden assault of this nature, it was difficult for the witnesses to measure the correct distance from where the shots were fired. It has been so held by the Supreme Court in the case of Hardev Singh v. Harbhej Singh and Ors. 1977 SCC (Cri) 5 that minor discrepancy in describing the correct distance by an dyewitness from where the gun was fired is immaterial. The victim did receive the injuries of firearm and knife allegedly wielded by the assailants. So far as the present accused appellants are concerned, they had opened shots on the deceased and he did receive the injuries of firearms. The direct evidence is satisfactory and reliable There is no conflict between the ocular version and medical evidence. The statements of the witnesses are not at all belied that after the fall of the victim, the assailants neared him and fired shots. The assailants while opening shots would not have remained stationed all at one and the same point qua the victim and. it would be a pedantic approach, to expect the description of measurement of distance of firing by eyewitnesses with arithmetical accuracy of measuring tape. We reject the argument of any inconsistency between the ocular version and medical evidence.
32. It has lastly been argued that recovery of firearm and cartridges from the accused appellants was planted and further that there was no ink evidence as to the keeping of the three empties of cartridges illegedly recovered from the spot by the Investigating Officer on 3.11.2001 and the coutrymade pistols allegedly recovered from the accused appellants till they were sent for comparison to Ballistic Expert. as late as on 1.2.2002.It is also urged with reference to the statement of the Investigating Officer PW 11 K.N. Misra that earlier to the sending of the articles to the Ballistic Expert, the same remained at the Police Station. The criticism has been levelled that the same had not been deposited in Sadar Malkhana. The argument would not detain us for long. There can be no presumption about the tampering of the case property before sending the same for examination particularly when my Such suggestion was made to any of the police personnel examined at the trial. Tampering cannot be presumed simply because then articles remained in the Malkhana of the police station instead of at sadar Malkhana. Keeping of articles in a sealed condition before being sent for ballistic examination cannot be doubted without any basis. The evidence is there that 3 empties (Khokhas) recovered from the spot by the Investigating Officer were sealed then and there and deposited in such condition at the Police Station. The two accused appellants were arrested by the Investigating Officer on 4.11.2001 at 3.10 A.M. near the culvert of manpur Ghoghar river. As the arrest had been made at odd hour, there could be no public witness of the recovery made from them viz. a countrymade pistol and two live cartridges from each of them. The recovered articles had been sealed then and there They could not be immediately sent to the Ballistic Expert for comparison with the, emptied recovered from the spot because sanction of the District Magistrate had also be to obtained for prosecuting them under the Arms Act and the recoveries were to be produced before him. The sanction for prosecuting the accused appellants under Section 25 of the Arms Act was accorded by Ms. Monika S. Garg, District Magistrate, Rampur on 17.1.2002. It is recorded in her order according sanction that the recovered articles, viz, one countrymade pistol and two live cartridges (recovered from each of them) had been produced before her in sealed condition. The seals were found in tact and after inspecting the recovery the same had again been sealed before her. It should also be pointed out that in his report Ex. Ka-29, the Ballistic Expert found that two of the empty cartridges had been fired from the two countrymade pistols recovered from the two accused appellants. True, it could not be so said about the third empty cartridge but it has no adverse effect on the prosecution case. The third empty could of the shot fired by any of the remaining two assailants (Arif alias Bhola and unknown assailant). So, the report of the Ballistic Expert further fortifies the prosecution case against the two accused appellants.
33. Having dealt with threadbare the arguments and submissions of the learned Counsel for the appellants, we do not find any merit therein.
34. It is proved to the hilt by satisfactory and clinching evidence of the three eyewitnesses consistent with the medical evidence contained in the post mortem report as proved by PW 4 Dr Satish Chandra that the accused appellants were the assailants with two others in committing the murder of Sohan Singh. The accused appellants are lather and son and both of them played potent role of shooting in committing this murder. Both of them were acting in concert with previous meeting of minds. Both of them are guilty of the murder of the deceased punishable under Section 302 read with Section 34 I.P.C. Their conviction under Section 25 Arms Act is also justified.
35. Coming to the sentence part, we do not think that the case falls under the category of "rarest of rare" cases, justifying the imposition of death penalty on the accused appellant Nirmail Singh. His case is not different from that of the co-accused Santok Singh, both of them having opened shots on the deceased. Both of them should be treated alike in the matter of punishment. The object of inflicting punishment is to protect the society and to achieve this avowed object, appropriate sentence should be imposed on the culprit. We are of the considered opinion that the death penalty imposed on accused appellant Nirmail Singh should be converted into imprisonment for life which is the lesser of the two alternative punishments proved for the offence of murder.
36. In the final result, our order is as under:
Criminal Appeal No. 3710 of 2004 filed by accused appellant Nirmail Singh is partly allowed. His conviction for the murder of Sohan Singh is maintained. He stands convicted under Section 302 read with Section 34 I.P.C. His sentence of death penalty is converted into life imprisonment. His conviction and sentence under Section 25 of the Indian Arms Act as awarded by the lower Court are maintained and he shall undergo rigorous imprisonment for three months for this offence which shall run concurrently with life imprisonment.
37. Criminal Appeal No. 573 of 2004 is also partly allowed. The appellant Santok Singh shall also undergo life imprisonment under Section 302 I.P.C. read with Section 34 I.P.C. The sentence of fine of Rs. 50,000/- passed against him is set aside. His conviction for the offence under Section 25 of the Indian Arms Act with the sentence of rigorous imprisonment of three months is confirmed as such. Both the sentences shall run concurrently.
38. Criminal Reference No. 4 of 2004 made by the Sessions Court under Section 366 Cr.P.C. is rejected.
39. Both the appellants are in jail. They shall serve out the sentences awarded to them.
40. Let a copy of this judgment along with record be sent to the Court below for compliance. Compliance be reported within two months.