Important Point
Where I.O. made attempt but no independent person came out for exami­nation the evidence of PW 2 and PW 3, though truthful as eye witness­es, cannot be ignored.

Judgment

Nanavati, J.-Both these appeals are directed against the acquittal of the two respondents. They were tried for committing murder of Jaggar Singh. The trial Court convicted respondent Bhola Singh but acquitted respondent Mithu Singh giving him benefit for doubt, Bhola Singh appealed to the High Court against his conviction and the State chal­lenged the acquittal of Mithu Singh. The High Court allowed the appeal of Bhola Singh and dismissed the State’s appeal against Mithu Singh.

2. It was the prosecution case that after the murder of Kartar Singh, father of both the respondents, Jaggar Singh the deceased had de­veloped illicit intimacy with their mother. This was not liked by the respondents. On 5.2.1987 at about 1.00 P.M. the deceased, who was a labourer, was collecting bricks for one Sukhwinder Kaur. His brother Gamdoor Singh was working at some distance and Bhola Singh had some time earlier gone for taking tea. Seeing him alone the respondents attacked him. Bhola Singh gave two kirpan blows on the back of his knee and Mithu Singh gave one gandasa blow on his right leg. After the deceased fell down they gave two or three more blows on the back of his neck. Seeing Bhura Singh and Gamdoor Singh coming towards them the accused ran away from that place. On these allegations both the ac­cused were tried in the Court of Sessions Judge, Sangrur in Sessions Case No. 28/87 for the offence punishable under Section 302 read with Section 34 IPC. The trial Court believing the evidence of PW 3 Gamdoor Singh and PW 4 Bhura Singh convicted Bhola Singh under Section 302 IPC. Mithu Singh was given benefit of doubt as it was of the opinion that the evidence of the two eye witnesses with respect to him was not corroborated by the medical evidence. The High Court also believed the evidence of the eye witnesses but strangely acquitted Bhola Singh also holding that it was not possible to say from the evidence as to who out of the two accused had caused the fatal injuries to the deceased and therefore neither of them could be held guilty.

3. The learned counsel for the appellant Mr. R.S. Sodhi submitted that the High Court having come to the conclusion that the evidence of the two eye witnesses was worthy of acceptance ought to have convicted them under Section 302 read with Section 34 IPC. This contention deserves to be accepted.

4. The High Court in its judgment has observed as under :

“The question now is whether on the evidence, it can be said with certainty that it was Bhola Singh who was responsible for the head injuries. The prosecution examined Gamdoor Singh (PW 3) and Bhura Singh (PW 4) as eye-witnesses to the occurrence. Both these eye-witnesses have consistently stated that Bhola Singh accused gave two Kirpan blow on the back side of the knee of Jaggar Singh and Mithu Singh accused gave one Gandasa blow on the right lower leg of the deceased with its blunt side and that on receipt of these injuries when Jaggar Singh fell down, each of the accused gave two or three more blows on the back of his neck. Dr. H.L. Garg who conducted autop­sy on the body of the deceased has categorically stated that he could not definitely say that if injury No. 2 could be caused with a Kirpan. According to the evidence on record, injuries on the neck and the right leg of the deceased were stated to have been caused by Bhola Singh and Mithu Singh accused but then it emerges from the evidence that each of the accused caused him two or three more injuries. On the question, therefore, whether the fatal injuries were caused by Bhola Singh accused only or Mithu Singh accused only or by both, we do not think we can safely come to the conclusion that it was Bhola Singh who caused the fatal injuries on the head and neck resulting in the death of Jaggar Singh. In the circumstances, neither of them can be held responsible for the fatal injuries caused to the deceased. In this view, we have necessarily to acquit Bhola Singh accused.”

5. From these observations it appea